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Attorney-client privilege

As I mentioned on Friday, the Supreme Court handed down a decision last week on attorney-client privilege, Jackson v. Greger.  It's not a monumental decision -- in fact, it follows previous Court decisions on the subject -- but it's probably something attorneys should be aware of.

The facts are straightforward.  Jackson was arrested in 1999 for a resisting arrest, disorderly conduct, and assaulting a police officer, under vaguely bogus circumstances.  Her attorney, Greger, worked out a deal where she pled to the first charge in return for the latter two being dropped.  Over a year later, Jackson hired a lawyer to pursue a 1983 claim against the city.  That went nowhere, though, because the Federal court found that Jackson's guilty plea to the resisting arrest charge collaterally estopped her from challenging her arrest or whether the officers had used excessive force.  After the Federal court granted summary judgment against her, she sued Greger, claiming that he'd committed malpractice by recommending that she plead guilty, in light of the fact that she'd told him she'd been injured and wanted to sue the city. 

Greger asserted the statute of limitations as a defense.  The critical question, of course, was when Jackson had "discovered" Greger's malpractice, and so Greger requested all of the documents concerning communications between Jackson and her current lawyer on that issue.  Jackson acknowledged that her communications with Greger were no longer privileged, since she'd sued him, but argued that her communications with her current lawer were privileged. 

The court of appeals reversed the trial judge's order compelling the discovery.  In doing so, the appellate court applied the common-law test to determine whether a waiver had occurred:  "(1) assertion of the privilege was a result of some affirmative act, such as filing suit, by the asserting party;  (2) through this affirmative act, the asserting party put the protected information at issue by making it relevant to the case; and (3) application of the privilege would have denied the opposing party access to information vital to his defense."  The court held that the second and third prongs hadn't been satisfied.

The Supreme Court affirmed, but on different grounds:  it held that application of the common-law test was improper, because the statute, RC 2317.02, provided the only means by which the attorney-client privilege could be waived:  by express consent, or by the client testifying as to the communications.  (The statute also provides that if the client discloses that he's engaged in sexual abuse of a child, the attorney is required to report it.  That's another story in itself.)

As I said, Jackson does little more than restate current law; the Court had expressed pretty much the same ruling over a decade ago in State v. McDermott, where the Court held that a client hadn't waived the privilege by disclosing the conversation with his attorney to a third party.

Still, it may be that Jackson doesn't mean quite all what it says.  The statute says nothing about the privilege being waived if the client files a lawsuit against the attorney, but everybody recognizes that as an exception.

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