739 N.E.2d 840 | Ohio Ct. App. | 2000
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *660
Woodling, under various names, is a law firm engaged in the practice of intellectual property law since 1956. Lightbody was employed by Woodling in 1979 to work in the field of patents, trademarks, copyrights and trade secrets.1 In March 1982, Woodling entered into a written fee agreement with James C. *661 Cooper, a client since 1976, whereby Woodling would receive a contingent fee from net proceeds received from filing and prosecution of a patent infringement action on Cooper's patent 4, 305, 091 (the "Harris litigation") and matters related thereto. According to Lightbody, he and Rust, on behalf of Woodling, orally agreed that Lightbody would receive fifty percent (50%) of the compensation received by Woodling under the Cooper agreement in exchange for his services in that matter. Rust and Lightbody both worked on the federal court case and in December 1986 a jury found the Cooper patent valid but no infringement. An appeal followed.
Lightbody contends that Woodling modified the Cooper fee agreement by providing for an additional ten percent (10%) attorney fee derived from any other litigation from the "091 patent." The infringement suit was settled in 1989 for $250,000 and the transfer of certain Harris patents to Cooper. Lightbody received 50% of the attorney fee. In 1992, the "091" and other Harris patents generated a $650,000 fee for Woodling from which Lightbody received $217,000 or only 33 1/3% of the fee. He was then advised he would no longer be receiving any payments or fees from the Cooper/Harris patent matters. In July 1993 Lightbody left the Woodling firm, apparently followed by 50% of its clients.
On February 18, 1998, he filed the complaint alleging eleven counts including fraud, breach of contract, and breach of fiduciary duty, and requesting injunctive relief. Woodling. answered with a general denial, sundry affirmative defenses and a counterclaim praying damages resulting from, among others, Lightbody appropriating its trade secrets and inducing Woodling's clients to sever the relationship. During his deposition Lightbody refused to answer questions on the basis of attorney client privilege and that the answer called for a legal conclusion. Lightbody moved for a protective order.
On July 21, 1998, Woodling filed a motion for an order compelling Lightbody to answer certain questions at his deposition regarding his communications with Cooper, the type of information he kept in his trial book, whether he approved the filing of the complaint in the Harris litigation, and whether Cooper asked him to undertake litigation in another matter in 1988. Attached to the motion and brief was the Declaration of J. Carl Cooper which he swore to be the truth. Cooper claimed he understood Lightbody to be a "part of Mr. Rust's support staff of attorneys and other support people," that Lightbody assisted in the prosecution of the Harris litigation, and that he had communications with Lightbody "but not as an attorney separate and apart from Rust who was the primary attorney directing the litigation against Harris * * *." The declaration further provided that he had privileged communications with Rust and with Lightbody, but the communications with Lightbody were "not separate and apart from Rust but *662 simply with him as part of Rust's legal support group." Woodling further argued that "[s]imply because Lightbody was a lawyer on the staff of Rust does not create a separate attorney-client relationship."
Woodling also asserted that Lightbody's objections, on the basis that his answers to how his contractual claims related to the Cooper fee agreement called for a legal conclusion, were disingenuous, especially considering that Lightbody was an attorney who had drafted contracts for at least 18 years.
In his response, Lightbody argued that "Cooper is obviously a former client of plaintiff and the defendants, and is believed to be a client of the defendants to date." He pointed out that Cooper's declaration does not contain a waiver of the attorney-client testimonial privilege contained in R.C.
Finally, Lightbody asserted that he was a patent lawyer, not a contract lawyer, and questions regarding whether he considered himself an "offeror" or "offeree" in any particular circumstance call for him to interpret legal terms. Moreover, the question "By what mechanism are you a party to the agreement attached [to the complaint] at Exhibit A?" was just "different phraseology for a question which had been asked approximately 6 times by defendants." According to Lightbody, the question also called for a legal conclusion.
On October 2, 1998, the judge entered the following order:
DFTS KENNETH MITCHELL'S MOTION FOR AN ORDER COMPELLING DISCOVERY IS WELL TAKEN AND GRANTED. PLAINTIFF'S ARGUMENT THAT ANSWERING THE QUESTIONS WOULD VIOLATE THE ATTORNEY-CLIENT PRIVILEGE IS NOT WELL TAKEN AS PLAINTIFF DOES NOT HAVE A PRIVILEGE SEPARATE AND APART FROM THAT OF THE DEFENDANTS IN THIS CASE. PARAGRAPH 9 OF THE COOPER DECLARATION WHICH PLAINTIFF REFERS TO, STATES THAT COOPER DID NOT CONSIDER THE PRIVILEGED COMMUNICATIONS WITH LIGHTBODY TO BE SEPARATE AND APART FROM RUST. FURTHER EC 4-2 STATES: "UNLESS THE CLIENT OTHERWISE DIRECTS, A LAWYER MAY DISCLOSE THE AFFAIRS OF HIS CLIENT TO PARTNERS OR ASSOCIATES OF HIS FIRM." PLAINTIFF[']S OBJECTIONS BASED UPON THE QUESTIONS SEEKING A LEGAL CONCLUSION ARE ALSO NOT WELL TAKEN. AN ATTORNEY NEED NOT BE AN EXPERT IN CONTRACT LAW TO ANSWER QUESTIONS THAT REQUIRE A KNOWLEDGE OF BASIC CONTRACT LAW.
Lightbody filed appeal from this order.
The first assignment of error states:
*663I. THE TRIAL COURT ERRED WHEN IT RULED THAT THE APPELLANT, A PLAINTIFF WHO IS AN ATTORNEY AT LAW MUST RESPOND TO QUESTIONS POSED TO HIM AT HIS DEPOSITION, WHEN SUCH QUESTIONS CONCERNED COMMUNICATIONS MADE BY SAID ATTORNEY'S CLIENT DURING THE ATTORNEY-CLIENT RELATIONS.
Here Lightbody and Woodling assert the same arguments as below. The regulation of discovery is left to the discretion of the judge and, upon appeal to this court, we review assignments of error regarding discovery matters for an abuse of that discretion.Alpha Benefits Agency, Inc. v. King Ins. Agency, Inc. (Sept. 2, 1999), Cuyahoga App. No. 74623, unreported. "The term `abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983),
"A fundamental principle in the attorney-client relationship is that the attorney shall maintain the confidentiality of any information learned during the attorney-client relationship." Kalav. Aluminum Smelting Refining Co., Inc. (1998),
Section
An attorney [shall not testify] concerning a communication made to the attorney by a client in that relation or the attorney's advice to a client, except that the attorney may testify by express consent of the client or, if the client is deceased, by the express consent of the surviving spouse or the executor or administrator of the estate of the deceased client * * *.
It is axiomatic that only the client can waive the attorney-client privilege. E.g., State v. Today's Bookstore, Inc.
(1993),
In addition to the testimonial privilege afforded to a client, Canon 4 of the Ohio Code of Professional Responsibility places upon an attorney the duty to preserve the confidences and secrets of a client. A "`[c]onfidence' refers to information protected by the attorney-client privilege under applicable law, and `secret' refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client." DR 4-101(A). An attorney shall not knowingly reveal a confidence or secret of his client but may do so with the client's consent after full disclosure, or when required by law or court order. DR 4-101(B)(1), (C)(1)-(2)
"The obligation of an attorney to preserve the confidences and secrets of the client continues even after the termination of the attorney's employment." Kala,
In the present case, all of the parties have asserted that each provided legal services to Cooper regarding the prosecution of the Harris litigation. As such, all of the parties owe to Cooper the duty to preserve his confidences and secrets. They also owe to him the duty to prevent the dissemination of such information. See DR 4-101(D). They cannot, either individually or collectively, waive Cooper's testimonial privilege found in R.C.
The order effectively allowed Woodling, for the purpose of procuring discovery for its own advantage and without evidence of full disclosure to Cooper, to waive both Cooper's testimonial privilege and each attorney's ethical obligation to safeguard his confidences and secrets. As such, the disposition of the motion constitutes an abuse of discretion and Lightbody's first assignment of error is well taken.
In this second assignment of error, Lightbody asserts the following:
II. THE TRIAL COURT ERRED WHEN IT RULED THAT A DEPONENT MUST ANSWER QUESTIONS AT DEPOSITION WHICH CALL FOR A LEGAL CONCLUSION EVEN THOUGH THE DEPONENT, AN ATTORNEY AT LAW, IS NOT AN EXPERT IN THE SUBJECT AREA OF LAW.
We lack authority to consider Lightbody's arguments regarding those deposition questions which he claims call for a legal conclusion because that portion of the order does not comport with the definition of "final order" under R.C.
Section
(1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment;
(2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment;
(3) An order that vacates or sets aside a judgment or grants a new trial;
(4) An order that grants or denies a provisional remedy and to which both of the following apply:
(a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action. [Emphasis added.]
That portion of the order compelling discovery as it relates to rendering a legal opinion or conclusion does not fall under subdivisions (B)(1), (2), (3), or (4) as set forth above because it does not determine the action or prevent a judgment, involve a special proceeding or a summary application in an action after judgment, *666 vacate or set aside a judgment, or grant a new trial, or involve a provisional remedy of the type included in subdivision (4). Even if this court concluded that it did involve the proper provisional remedy, Lightbody would be afforded a meaningful or effective remedy by an appeal following final judgment as this assignment of error presents issues subject to standard evidentiary review.
The order of the trial court relating to the attorney-client privilege is reversed. The appeal of the order relating to compelling answers with legal conclusions is dismissed because it is not a final appealable order.
This action is reversed in part and dismissed in part.
It is ordered that the appellant recover from the appellees his costs herein taxed.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
ANN DYKE, P.J., CONCUR; KENNETH ROCCO, J., CONCURS IN PART ANDDISSENTS IN PART. (SEE CONCURRING AND DISSENTING OPINION ATTACHED TO JOURNAL ENTRY.)________________________ JUDGE ANNE L. KILBANE
Dissenting Opinion
I agree with the majority's conclusion that this court lacks jurisdiction to consider the second assignment of error. I also agree with the underlying purpose of the majority opinion on the first assignment of error: to protect the confidentiality of privileged attorney-client communications. However, that confidentiality is not breached by disclosure among the client's co-counsel. I believe that one attorney can discover communications among the client and other attorneys on the same matter provided that adequate protective orders are entered to prevent further disclosure to others. Therefore, I would affirm the trial court's decision to allow discovery and remand with instructions to enter an appropriate protective order.
