Petition for Writ of Certiorari — Lewis v. Ohio

‘(/) Supreme Court, WS.

O4 207 aus 102008

OFFICE OF THE CLERK

No.

IN THE,

SUPREME COURT OF THE UNITED STATES

BETH LEWIS,

PETITIONER,

-v-

STATE OF OHIO,

RESPONDENT.

On Petition for Writ of Certiorari to the

Supreme Court of Ohio

PETITION FOR WRIT OF CERTIORARI

S. Adele Shank 0022148

Counsel of Record

Law Office of S. Adele Shank

3380 Tremont Road

Columbus, Ohio 43221

(614) 326-1217

Lawrence J. Greger 0025925

Liberty Tower, Suite 1100

120 W. Second Street

Dayton, Ohio

(614) 937-223-3153

Counsel for Petitioner

i

QUESTIONS PRESENTED FOR REVIEW

DOES THE SIXTH AMENDMENT RIGHT TO

COUNSEL INCLUDE THE RIGHT TO PRIVILEGED,

CONFIDENTIAL, ATTORNEY-CLIENT

CONSULTATION THAT WILL REMAIN PRIVILEGED

AND CONFIDENTIAL AFTER THE CLIENT’S

DEATH?

DOES THE FIFTH AMENDMENT RIGHT TO

REMAIN SILENT PROTECT A CLIENT FROM

REVELATION OF CONFIDENTIAL

STATEMENTS MADE TO HIS LAWYER?

IS THE RIGHT TO DUE PROCESS AND ACCESS TO

THE COURTS INFRINGED WHEN ATTORNEY-

CLIENT COMMUNICATIONS ARE NOT PROTECTED

BY THE ATTORNEY-CLIENT PRIVILEGE?

il

LIST OF PARTIES

Petitioner is attorney Beth Lewis.

Respondent is the State of Ohio.

In the proceedings below, John Doe, an unidentified person

indicted by the Montgomery County Grand Jury, was also

listed as a party.

iil

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW. ........... i

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JURISDICTIONAL STATEMENT....................4. l

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED....................4. l

I. THE SIXTH AMENDMENT

RIGHT TO COUNSEL INCLUDES

THE RIGHT TO PRIVILEGED

CONFIDENTIAL ATTORNEY-

CLIENT CONSULTATION THE

CONTENT OF WHICH WILL

REMAIN PRIVILEGED AND

CONFIDENTIAL AFTER THE

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APPENDIX

Ohio Supreme Court Opinion

iV

Il. THE FIFTH AMENDMENT

RIGHT TO REMAIN — SILENT

PROTECTS A CLIENT FROM

REVELATION OF STATEMENTS

MADE TO HIS LAWYER..................

Iii, THE RIGHT TO DUE

PROCESS AND ACCESS TO THE

COURTS IS INFRINGED WHEN

ATTORNEY-CLIENT

COMMUNICATIONS ARE NOT

PROTECTED BY THE ATTORNEY-

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Ohio Supreme Court, Opinion

Denial of Reconsideration...................

Montgomery County Court of

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Montgomery County Court of Common Pleas

Decision, Entry and Order...................

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TABLE OF AUTHORITIES

CASES

Annesley v. Earl of Anglesea,

17 How. St. Tr. 1139 (1743)............. 5,9, 12, 13

Crawford v. Washington,

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Hoffa v. United States, 385 U.S. 293 (1966)............ 5,6

Jaffee v. Redmond, 518 U.S. 1 (1996).....00..0.00.0.000008. 8

State ex rel Shemo, v. Mayfiled Heights, 96 Ohio

0.56 SPD, 77S. ME, 20. AOS (AOR ioc cvicvecessdcrnnncase 3

Swidler v. United States, 524 U.S. 399 (1998)......... 4,11

Upjohn Co. v. United States.

FEF Se. SEP AMI iincwinscckcisxaniuisacsee 4.8

Weatherford v. Bursey, 429 U.S. 545 (1977).........5, 6.8

CONSTITUTIONAL PROVISIONS

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STATUTES

Ohio Revised Code §2317.029(A)

(ARGOTROR) CEIUE). 605 scsisvcriccerndacaceees passim

RULES

Ohio Supreme Court Rule of Practice XI, Sec. 2..

OTHER AUTHORITIES

David W. Louisell, CONFIDENTIALITY,

CONFORMITY AND CONFUSION:

PRIVILEGES IN FEDERAL COURT

Topbay, 31 Tul. L. Rev. 101,

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United States as Amicus Curiae in

Weatherford v. Bursey, 429 U.S. 545 (1977).....

8 J. Wigmore, EVIDENCE

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OPINIONS BELOW

The Montgomery County Court of Common Pleas

decision appears as State v. Doe, Case No. 2002 CR 01975

(Montgomery County Court of Common Pleas)(under

seal)(June 26, 2002)(unreported). The Montgomery County

Court of Appeals, Second Appellate District decision

appears at State v. Doe, Case No. 19408 (September 19,

2002), 2002 Ohio 4966, 2002 WL 31105389 (Ohio App. 2

Dist.). The Ohio Supreme Court decision on appeal appears

as State v. Doe, 101 Ohio St.3d 170, 2004 Ohio 705, 803

N.E.2d 777 (2004). The Ohio Supreme Court decision

denying reconsideration appears as State v. Doe, 102 Ohio

St. 3d. 1450, 2004 Ohio 2383, 808 N.E.2d 400 (2004).

JURISDICTIONAL STATEMENT

Reconsideration was denied on May 13, 2004. This

Court has jurisdiction to entertain this petition for writ of

certiorari pursuant to 28 U.S.C. § 1257(3) (1988).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Const. amend V: “No person shall . . . be

compelled in any criminal case to be a witness against

himself, nor be deprived of life liberty or property, without

due process of law. . .”

U.S. Const. amend VI: “In all criminal

prosecutions, the accused shall enjoy the right . . . to have

the Assistance of Counsel for his defense.”

U.S. Const. amend XIV: “No state shall. . . deprive

any person of life, liberty, or property, without due process

of law; nor deny any person within its jurisdiction the equal

protection of laws.”

Ohio Revised Code §2317.02 (Anderson) (2002):

2

a

The following persons shall not testify in

certain respects:

(A) An attorney, conceming a

communication made to the attorney by a

client in that relation or the attorney’s advice

to a client, except that the attomey may

testify by express consent of the client or, if

the client 1s deceased, by the express consent

of the surviving spouse or the executor or

the administrator of the estate of the

deceased client except that, if the client

voluntarily testifies the attorney may be

compelled to testify on the same subject.

STATEMENT OF THE CASE

This matter comes before the Court from the Ohio

Supreme Court’s denial of reconsideration on May 13,

2004. The Ohio Supreme Court declined to reconsider its

interpretation of Ohio’s attorney-client privilege statute,

Ohio Revised Code §2317.029(A). That statute, as

interpreted, allows an attorney to be compelled to testify

about the contents of confidential client communications

based upon a waiver by a surviving spouse, executor, or

administrator of the estate. for purposes outside the scope

of the often recognized “testamentary exception.” once the

client is deceased.

On June 26, 2002, Assistant Federal Public

Defender Beth Lewis was held in contempt for her refusal

to testify before the Montgomery County Grand Jury

regarding confidential communications with her client Jan

Marie Franks. Attorney Lewis represented Franks in

several federal criminal matters. While that representation

continued, a child disappeared. For reasons unknown, Ms.

Franks and or persons known to Ms. Franks became

3

persons of interest in the investigation following the child’s

disappearance. Ms. Franks died on December 30, 2001. On

June 19, 2002, Ms. Lewis was subpoenaed to testify.

The State produced an affidavit from Ms. Franks’

surviving spouse, purportedly waiving Ms. Franks’

attorney-client privilege. In doing so the State relied on

Ohio Revised Code §2317.02, which provides that an

attomey may testify “if the client is deceased, by the

express consent of the surviving spouse or the executor or

the administrator of the estate of the deceased client.”

Although Ohio Revised Code §2317.02 had never

before been applied except as a “testamentary exception” in

a will contest, the tral judge found it applicable in the

grand jury proceeding and ordered Attorney Lewis to

testify. Attorney Lewis refused and was held in contempt.

The Montgomery County Court of Appeals adopted

the trial judge’s interpretation of the statute. The Ohio

Supreme Court construed the statute to allow posthumous

waiver for all purposes.

Attorney Lewis sought reconsideration under Ohio

Supreme Court Rule of Practice XI, Sec. 2, asking the court

to reconsider its decision in light of its infringement of the

Fifth Amendment right not to self-incriminate, the Sixth

Amendment right to the effective assistance of counsel and

Fourteenth Amendment Due Process grounds. Ohio

Supreme Court Rule of Practice XI, Sec. 2 is the

mechanism by which the court will “correct decisions,

which upon reflection, are deemed to have been made in

error.” State ex rel Shemo, v. Mayfiled Heights, 96 Ohio

St.3d 379, 380, 775 N.E. 2d. 493, 495 (2002). The court

issued a one-line ruling on the merits denying

reconsideration on May 13, 2004. It is from that ruling, as

applied to the underlying decision, that attorney Lewis now

timely seeks review.

REASONS FOR GRANTING THE WRIT

I.

THE SIXTH AMENDMENT RIGHT TO

COUNSEL INCLUDES THE RIGHT TO

PRIVILEGED CONFIDENTIAL ATTORNEY-

CLIENT CONSULTATION THE CONTENT OF

WHICH WILL REMAIN PRIVILEGED AND

CONFIDENTIAL AFTER THE CLIENT’S

DEATH.

At the time she conferred with her indigent client

Jan Franks, Beth Lewis was a federal public defender. Any

conversation that may have occurred regarding the subject

matter being investigated by the Montgomery County

Grand Jury took place in the context of that relationship. A

fundamental aspect of the attorney-client relationship is the

ability to engage in confidential consultation. Furthermore,

although the facts of this case involve legal representation

of, and consultation with, an indigent criminal defendant,

the Ohio Supreme Court’s interpretation of Ohio Rev. Code

$2317.02 allows the State and any other litigant access to

all attorney-client conversations without regard to the

character of the consultation. The chilling effect of this

ruling undermines the criminal defendant’s night to the

effective assistance of counsel and infringes every person’s

right of access to the courts.

The attorney-client privilege is the oldest of the

privileges. Swidler v. United States, 524 U.S. 399, 403

(1998); Upjohn Co. v. United States, 449 U.S. 383, 389

(1981) citing 8 J. Wigmore, Evidence § 2290 (McNaughten

eee

5

rev. 1961). It was firmly established in the common law

long before the Sixth Amendment was ratified in 1791.

See, Annesley v. Earl of Anglesea, 17 How. St. Tr. 1139,

1239-1244 (1743). Thus, the right to confidential attorney-

client consultation, protected by the attorney-client

privilege, is an aspect of the assistance of counsel

guaranteed by the Sixth Amendment. See the analysis of

the Confrontation Clause and its meaning in Crawford vy.

Washington, 124 S. Ct. 1354 (2004).

This Court has said that the government may not

invade the confidential attorney-client relationship and that

to do so violates the Sixth Amendment. Weatherford vy.

Bursey, 429 U.S. 545, 558 (1977). The United States

government has conceded that, “the Sixth Amendment’s

assistance of counsel guarantee can be meaningfully

implemented only if a criminal! defendant knows that his

communications with his attorney are private and that his

lawful preparations for trial are secure against intrusion by

the government.” Brief for the United States in Hoffa v.

United States, 385 U.S. 293 (1966) at p. 71 and Brief for

the United States as Amicus Curiae in Weatherford vy.

Bursey, 429 U.S. 545 (1977) at p. 24 cited in Weatherford,

429 U.S. at p. 554, find.

In Weatherford, the Court found no_ Sixth

Amendment violation in the narrow fact pattern where an

undercover informant was invited by the accused to attend

a meeting between himself and his lawyer and there was

“no tainted evidence in this case, no communication of

defense strategy to the prosecution, and no purposeful

intrusion.” 429 U.S. at p. 558. The circumstances in

Weatherford have no application in this matter. Without

regard to the quality or purpose of the evidence sought, the

ability to compel counsel to reveal client confidences is

clearly a “purposeful intrusion.”

6

In Hoffa v. United States, 385 U.S. 293 (1966),

although “none of the Petitioner’s incriminating statements

. were made in the presence of counsel,” the Court

assumed that had they been, “there might have been a Sixth

Amendment violation.” 385 U.S. at 308. Again the

reasoning that avoided implication of the Sixth Amendment

right to counsel in Hoffa is not present here. The

statements at issue in this case were made within the

attorney-client relationship, as would be any statement

affected by Ohio Revised Code §2317.02(A).

Weatherford and Hoffa address situations in which

the government eavesdropped on _ attorney-client

consultations through use of informants or undercover

agents. Under the Ohio Supreme Court’s ruling, the

accused’s attorney becomes the government eavesdropper.

Acting as counsel, in this case appointed counsel, the

attorney solicits information from his client in order to

prepare for trial, negotiate a plea, address sentencing issues,

or to otherwise perform his function as counsel. It is in fact

counsel’s obligation to do so.

The client reveals information to his lawyer that he

may never reveal in any other situation. By talking with

counsel in confidence, the client may decide to reveal very

private information to benefit his cause or may decide that

the information is to forever remain his secret. Under the

Ohio Supreme Court’s ruling, that option no longer exists.

Once information is revealed to an attorney in Ohio, the

client loses control of that information for the lawyer may

be compelled to reveal it after the client’s death.

The problem cannot be avoided. The statute applies

to persons who marry or who may, even posthumously, be

determined to have been in a common law marriage. It

extends the right to waive the attorney-client privilege to

executors and administrators of estates. Thus, in Ohio,

7

there is no guarantee that any attorney-client consultation

will remain confidential.

The fact that an attorney may be forced to reveal his

client’s secrets undermines the profession generally, but

has particularly negative consequences for representation of

the indigent. All who accept appointments, all who serve as

public defenders, have been greeted by clients with theories

of conspiracy and collusion with the State based simply on

the fact that the lawyer is provided by the State. What was

once a misunderstanding of the system now is truth in

Ohio. Counsel will be the tool the state uses to reveal the

client’s secrets. This damages not only the client but also

the legal profession. John Wigmore, in defending the

attorney client privilege noted:

If the counsellor were compellable to

disclose, ‘no man . . . of noble or elevated

mind would stoop to such employment.’

Certainly the position of legal adviser would

be a difficult and disagreeable one; for it

must be repugnant to any honorable man to

feel that the confidences which his relation

naturally invites are liable at the opponent’s

behest to be laid open through his own

testimony. He cannot but feel the

disagreeable inconsistency of being at the

same time solicitor and revealer of the

secrets of the cause. This double-minded

attitude would create an unhealthy moral

state in the practitioner. Its concrete

impropriety could not be overbalanced by

the recollection of its abstract desirability.

8 J. Wigmore, EVIDENCE, §2291 at p. 557 (Third Edition

1940).

8

In Weatherford, this Court recognized that “one

threat to the effective assistance of counsel posed by

government interception of attorney-client communications

lies in the inhibition of free exchanges between defendant

and counsel because of the fear of being overheard.” 429

U.S. at 554 fn4. Every attorney-client conversation will

now be overshadowed by the fear that it will be

“overheard” by the government at some future time when

the defendant’s lawyer repeats it. Ohio Revised Code

§2317.02 is unconstitutional as interpreted by the Ohio

Supreme Court.

The Ohio Supreme Court interpreted the word

“may” in Ohio Revised Code §2317.02 to mean that the

determination of whether the privilege will be respected is

left to “the sound discretion” of each trial court as it is

confronted with the question on a case-by-case basis. State

v. Doe, 101 Ohio St.3d at 173. This Court has said that “if

the purpose of the privilege is to be served, the participants

in a confidential conversation ‘must be able to predict with

some degree of certainty whether particular discussions

will be protected. An uncertain privilege, or one which

purports to be certain but results in widely varying

applications by the courts, is little better than no privilege

at all.” Jaffee v. Redmond, 518 U.S. 1, 18 (1996) quoting

Upjohn Co. v. United States, 449 U.S. 383, 393 (1981).

9

IT.

THE FIFTH AMENDMENT RIGHT TO REMAIN

SILENT PROTECTS A CLIENT FROM

REVELATION OF STATEMENTS MADE TO HIS

LAWYER

While it is clear that not every attorney-client

communication will implicate Fifth Amendment rights, it is

also clear that some will inevitably do so. When a client

reveals information to his lawyer that is incriminating,

compelling the lawyer to reveal the client’s confidence is

no different from compelling the client to testify against

himself.

In Annesley v. Earl of Anglesea, counsel noted,

The reason why attornies are not to be

examined to any thing relating to their

clients or their affairs, is, because they

would destroy the confidence that is

necessary to be preserved between them. . .

The end is, that persons with safety may

substitute others in their room; and therefore

if you cannot ask me, you cannot ask that

man; for every thing said to him, is as if I

had said to myself, and he is not to answer

__—_—_———

it. 5 2

17 How. St. Tr. 1139, 1225 (1743) This policy underlying

the attorney-client privilege has been “plainly grounded

since the latter part of the 1700s.” 8 J. Wigmore, Evidence,

§2291 (Third Edition, 1940) Affording defendants the right

to counsel, was never intended to be a means to circumvent

the Fifth Amendment right to remain silent.

Some may argue that the lawyer should be required

to assert the Fifth Amendment on the client’s behalf rather

than rely on the attorney-client privilege, but that still

10

violates the client’s confidence and will chill the

willingness of clients to reveal matter they fear may be

incriminating. This will have effects far beyond the

traditional criminal arena of assaults and theft offenses. It

will include corporate and business clients who entrust

financial and tax concerns to their lawyers. Often in the

civil arena, counsel is consulted because the client does not

know if a practice has or will cross the line of legality. If

consulting counsel will result in discovery and prosecution,

few will seek legal advice.

|

11

Il.

THE RIGHT TO DUE PROCESS AND ACCESS TO THE

COURTS IS INFRINGED WHEN ATTORNEY-CLIENT

COMMUNICATIONS ARE NOT PROTECTED BY THE

ATTORNEY-CLIENT PRIVILEGE.

The Fourteenth Amendment to the United States

Constitution guarantees that every person has the right to

due process in the courts. It is axiomatic that a fundamental

aspect of access to the courts is through legal counsel. The

attorney-client relationship at risk in this matter was one

formed in the context of a federal prosecution between a

federal public defender and her client. The consultations

between them took place in the context of that relationship

and in light of the Fifth Amendment guarantee that the

accused would not be required to incriminate herself.

However, concerns about posthumous disclosure will not

be limited to criminal clients.

Knowing that communications. will remain

confidential even after death encourages the client

to communicate fully and frankly with counsel.

While fear of disclosure, and the consequent

withholding of information from counsel, may be

reduced if disclosure is limited to posthumous

disclosure in a criminal context, it seems

unreasonable to assume that it vanishes altogether.

Clients may be concerned about reputation, civil

liability, or possible harm to friends or family.

Posthumous disclosure of such communications

may be as feared as disclosure during the client’s

lifetime.

Swidler v. United States, 524 U.S. 399, 407 (1998).

Information can be a powerful weapon. Some secrets can

12

have implications for generations to come. More than one

crime has been committed in order to protect personal and

private information.

The Ohio Supreme Court’s ruling chills every

person’s access to legal advice and thus to redress in the

courts by effectively eliminating the attorney-client

privilege. No person who consults with counsel can be

assured that any conversation will remain confidential.

The right to freely consult with one’s attorney has

-implications far beyond the parameters of a criminal

prosecution. The attorney-client privilege and _ other

evidentiary privileges, “are a right to be let alone, a right to

unfettered freedom, in certain narrowly described

relationships, from the state’s coercive or supervisory

powers and from the nuisance of its eavesdropping.” David

W. Louisell, CONFIDENTIALITY, CONFORMITY AND

CONFUSION: PRIVILEGES IN FEDERAL COURT TODAY, 31

Tul. L. Rev. 101, 109-110 (1956). The Ohio Supreme

Court’s ruling is not limited to criminal matters nor is the

attorney-client privilege. The Lord Chief Baron said, in

Annesley v. Earl of Anglesea,

[T]he foundation upon which it hath been held, and

is certainly undoubted law, that attornies ought to

keep inviolably the secrets of their clients, viz. That

an increase of legal business, and the inability of

parties to transact that business themselves, made it

necessary for them to employ (and as the law

properly expresses it, ponere in loco suo) other

persons who might transact that business for them.

That this necessity introduced with it the necessity

of what the law hath very justly established, an

inviolable secrecy to be observed by attornies, in

order to render it safe for clients to communicate to

their attornies all proper instruction for carrying on

a

13

those causes which they found themselves under a

necessity of intrusting to their care.

17 How. St. Tr. at 1241. Due process and access to the

courts must include a right to privacy within the context of

the attorney-client relationship. Eliminating or eroding the

confidential attorney-client relationship undermines the

fundamental principal of government that requires people

to resolve matters through the legal system rather than

through self-help. A government of laws cannot deny

recourse to its legal system by invading the attorney-client

relationship.

CONCLUSION

For all of the above reasons, Petitioner requests that

this Court reverse the judgment of the Ohio Supreme Court

and order that court to vacate the finding of contempt and

dismiss all proceedings against her in this matter.

Respectfully submitted,

S. Adele Shank 0022148

Counsel of Record

Law Office of S. Adele Shank

3380 Tremont Road

Columbus, Ohio 43221

(614) 326-1217

Lawrence J. Greger 0025925

Liberty Tower, Suite 1100

120 W. Second Street

Dayton, Ohio

(614) 937-223-3153

Counsel for Petitioner

1-A

APPENDIX

State v. Doe

2002-1666

SUPREME COURT OF OHIO

102 Ohio St.3d 1450; 2004 Ohio 2383; 808 N.E.2d 400;

2004 Ohio LEXIS 1063

May 13, 2004, Decided

NOTICE: DECISION WITHOUT PUBLISHED

OPINION

PRIOR HISTORY: Montgomery App. No. 19408, 2002

Ohio 4966. Reported at 101 Ohio St.3d 170, 2004 Ohio

705, 803 N.E.2d 777, 2004 Ohio LEXIS 322 (2004)

OPINION:

RECONSIDERATION OF PRIOR DECISIONS

On motion for reconsideration.

Motion denied.

2-A

THE STATE OF OHIO, APPELLEE, v. DOE; LEWIS,

APPELLANT.

[Cite as State v. Doe, 101 Ohio St.3d 170, 2003-Ohio-705. ]

(No. 2002-1666-Submitted October 22, 2003, at the Clinton

County Session-Decided March 3, 2004.)

APPEAL from the Court of Appeals for Montgomery

County, No. 19408, 2002-Ohio-4906.

SYLLABUS OF THE COURT

1. In the event of the death of a client, R.C. 2317.02(A)

authorizes the surviving spouse of that client to waive the

attorney-client privilege protecting communications

between the deceased spouse and attorneys who had

represented that deceased spouse.

2. The attorney of a deceased client may not assert

attorney-client privilege to justify refusal to answer

questions of a grand jury where the surviving spouse of the

attorney's client has waived the privilege in conformity

with R.C. 2317.02(A), and the attorney has been ordered to

testify by a court.

MOYER, C.J.

{ 1} This appeal concerns contempt proceedings brought

against attorney Beth Goldstein Lewis, appellant. Lewis,

citing attorney-client privilege and the advice of counsel.

refused to answer written interrogatories propounded to her

by a Montgomery County grand jury, even after having

been ordered to do so by the Common Pleas Court of

Montgomery County.

{{] 2} Lewis had represented Jan Marie Franks in prior

criminal matters. Franks died on December 30, 2001. In

order to encourage Lewis to provide information

concerning Franks in connection with a criminal

investigation, the police obtained an affidavit from Franks's

3-A

surviving husband, Shane Nolan Franks. In that affidavit,

Shane expressiy consented, pursuant to R.C. 2317.02(A), to

the disclosure of all communications made to Lewis by Jan

Franks as client and to disclosure of any advice given to

Franks by Lewis.

{4 3} The state thereafter issued a subpoena requiring

Lewis to appear before the grand jury. Lewis appeared but

refused to answer 18 of 20 written interrogatories submitted

to her. Pursuant to R.C. 2317.02(A), the state then moved

that the court of common pleas acknowledge the validity of

the waiver executed by Shane Nolan Franks as the

surviving spouse of Jan Marie Franks, "so that attorneys for

her may be relieved of the limitations upon testimony as to

communications that would have been privileged pursuant

to R.C. 2317.02(A) or otherwise."

{4 4} Following an ex parte hearing on the state's motion,

the court found that Shane Nolan Franks was the surviving

spouse of Jan Franks at the time of her death. It concluded

that his waiver of her attorney-client privilege was valid

pursuant to R.C. 2317.02(A) and declared that attorneys

who had represented her could testify regarding

communications made between Jan Franks and _ her

attorneys. Lewis nevertheless refused to answer the grand

jury interrogatories.

{¥ 5} In a separate entry filed the same day, the court

ordered Lewis to answer the written grand jury

interrogatories. Lewis, aware of the-entry of the court,

again appeared before the grand jury and again refused to

answer its questions.

{¥ 6} The following day the court held a hearing,

pursuant to R.C. 2939.15.(fnl) Counsel for both the state

and Lewis attended the hearing, which was closed to the

public. Lewis was given an opportunity to present any

evidence she might have challenging the court’s factual

4-A

conclusion that Shane Franks was the Surviving spouse of

Jan Franks at the time of her death. but proffered none.

After hearing the arguments of counsel. the court found

Lewis in contempt of court. It ordered her confined to the

county jail unless she purged herself of the contempt by

answering the questions of the grand jury by noon of the

following day. Lewis appealed from that order, and the

same day the Court of Appeals for Montgoinery County,

with the agreement of the state, stayed the judgment of the

trial court finding Lewis in contempt, pending disposition

of the appeal.

{| 7} The court of appeals affirmed the holding of the trial

court finding Lewis in contempt. It determined that R.C.

2317.02(A) authorized a court to compel an attorney to

testify once the attorney-client privilege had been waived.

The court of appeals further held that R.C. 231 7.02(A) gave

the same legal status to waiver of the attorney-client

privilege by the surviving spouse as waiver of the attorney-

client privilege by the client. Accordingly, the waiver of the

attorney-client privilege by Shane Nolan Franks. coupled

with the grand jury subpoena issued to Lewis, required her

to testify regarding attorney-client communications made

during her previous representation of Franks by Lewis.

{{ 8} The cause is before this court upon the allowance of a

discretionary appeal. We affirm the judgment of the court

of appeals.

{4 9} Resolution of this appeal depends on interpretation of

R.C. 2317.02. It provides:

{10} "The following persons shall not testify in certain

respects: |

{q 11} "(A) An attomey, 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

5-A

deceased, by the express consent of the surviving spouse or

the executor or administrator of the estate of the deceased

client * * *." (Emphasis added.)

{§ 12} Lewis correctly asserts that R.C. 2317.02(A)

provides that an attorney may testify where a surviving

spouse consents to it. She contends that use of the

permissive word "may" indicates that an attorney may

choose to testify or may refuse to testify, in the attorney's

discretion, after a surviving spouse waives the attorney-

client privilege.

{q 13} The state counters that R.C. 2317.02(A) does not

give an attorney the discretion to disregard a valid waiver

of attorney-client privilege made by the surviving spouse

of a deceased client. It argues that the word "may" is used

in the statute, as opposed to the word "shall," because the

attorney of a deceased client may never be called *>

testify, or her testimony may not be relevant, or it may be

inadmissible for other reasons. The state adamantly

denies that the use of the word "may" in the statute vests

an attorney with the final authority to determine whether

attorney-client communications will be disclosed where a

client has died.

{§ 14} We are persuaded by the state's arguments and

conclude that the court of appeals correctly interpreted R.C.

2317.02(A). It is axiomatic that the admissibility of

evidence in a judicial proceeding is determined by a trial

court in the sound exercise of its discretion. See, e.g., State

ex rel. Van Dyke v. Public Emp. Retirement Bd., 99 Ohio

St.3d 430, 2003-Ohio-4123, 793 N.E.2d 438, 4 43. R.C.

2317.02(A) provides that an attorney may testify by the

express consent of the surviving spouse as opposed to

mandating that an attorney shall testify by the express

consent of the surviving spouse, in deference to the trial

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court's well established role as the arbiter of the admission

of evidence.

{{ 15} The attorney-client privilege belongs solely to the

client-not the attorney. Lightbody v. Rust (2000), 137 Ohio

App.3d 658, 739 N.E.2d 840. In the event of the death of a

client, R.C. 2317.02(A) entitles the Surviving spouse of that

client to waive the privilege on behalf of the deceased

client. Ultimately, however. determination of whether an

attorney must testify in judicial proceedings as to

confidences received during representation of a deceased

client lies with the court-not the attorney.

{{ 16} Lewis contends that she knows better than Shane

Franks whether Jan Franks would have wanted Lewis to

disclose a communication Jan Franks made to her. Whether

this is true is irrelevant. The General Assembly made that

policy decision. R.C. 2317.02(A) vests authority to waive

the attorney-client privilege in a Surviving spouse, and not

in an attorney. Shane Franks was the Surviving spouse of

Jan Franks and waived her privilege. Lewis had no legal

justification to refuse to answer the questions of the grand

jury in derogation of the order of the trial court to do so.

{{ 17} Nor do we accept the argument that Lewis is

ethically barred from answering the grand jury's

interrogatories. While an attorney should preserve the

confidences and secrets of his client. that obligation "does

not preclude a lawyer from revealing information when his

client consents after full disclosure. when necessary to

perform his professional employment, when permitted bya

Disciplinary Rule, or when required by law." (Emphasis

added.) EC 4-2.

{4 18} Accordingly, DR 4-101 provides:

{4 19} "(C) A lawyer may reveal:

{120} “***

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{4 21} "(2) Confidences or secrets when permitted under

Disciplinary Rules or required by law or court order."

(Emphasis added. )

{4 22} We hold that in the event of the death of a client,

R.C. 2317.02(A) authorizes the surviving spouse of that

client to waive the attorney-client privilege protecting

communications between the deceased spouse and

attorneys who had represented that deceased spouse.

Moreover, we hold that the attorney of a deceased client

may not assert attorney-client privilege to justify refusal to

answer questions of a grand jury where the surviving

spouse of the attorney's client has waived the privilege in

conformity with R.C. 2317.02(A) and the attorney has been

ordered to testify by a court.

{4 23} The trial court did not err in finding Lewis in

contempt. The judgment of the court of appeals is therefore

affirmed.

Judgment affirmed.

RESNICK, F.E. SWEENEY, PFEIFER, LUNDBERG

STRATTON, O'CONNOR and O'DONNELL, JJ., concur.

F.E. SWEENEY, PFEIFER, LUNDBERG STRATTON,

O'CONNOR and O'DONNELL, JJ., concur separately.

LUNDBERG STRATTON, J., concurring.

{4 24} | agree with the majority opinion. | write only to

clarify my stance on the status of the contempt order

against Lewis. The majority concludes by stating, "The trial

court did not err in finding Lewis in contempt. The

judgment of the court of appeals is therefore affirmed."

While | agree that our judgment technically affirms that

Lewis was in contempt of the trial court's order compelling

her to testify, the assertion of attorney-client privilege

under these unique circumstances was an issue of first

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impression in this state. Consequently, unless Lewis

continues to refuse to testify despite our ruling, | believe

that no sanctions should be imposed on her. Therefore, |

concur.

F.E. SWEENEY, PFEIFER, O'CONNOR and

O'DONNELL, JJ., concur in the foregoing concurring

opinion. :

Mathias H. Heck Jr., Montgomery County Prosecuting

Attorney, and Carley J. Ingram, Assistant Prosecuting

Attomey, for appellee.

Sirkin, Pinales, Mezibov & Schwartz, L.L.P., Martin S.

Pinales, John P. Feldmeier and Jarrod M. Mohler: Bieser,

Greer & Landis, L.L.P., and David C. Greer; and Steve

Keller, Federal Public Defender, for appellant.

Richard A. Magnus, urging reversal for amici curiae

National Association of Criminal Defense Lawyers, Ohio

Association of Criminal Defense Lawyers, Maumee

Valley Criminal Defense Lawyers Association, and

Greater Cincinnati Criminal Defense Lawyers

-Association.

Jim Petro, Attorney General, Douglas R. Cole, State

Solicitor, Stephen P. Carney, Senior Deputy Solicitor,

Diane Richards Brey, Deputy Solicitor, and Elizabeth

Luper Schuster, Assistant Solicitor, urging affirmance for

amicus curiae Attorney General of Ohio.

Footnotes:

1. R.C. 2939.15 provides: "If the court of common pleas

determines that a witness before a grand jury is required to

answer an interrogatory and such witness persists in his

refusal, he shall be brought before the court, which shall

proceed in a like manner as if such witness had been

interrogated and refused to answer in open court."

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IN THE COURT OF APPEALS FOR

MONTGOMERY COUNTY, OHIO

STATE OF OHIO,

Plaintiff-Appellee C.A. CASE NO. 19408

v. T.C. NO. 02 CR 1975

(Criminal Appeal from

JOHN DOE, Common Pleas Court)

Defendant-Appellant

OPINION

Rendered on the 19" day of September 2002.

ee ee eee eee ee

CARLEY J. INGRAM, Assistant Prosecuting Attorney,

Dayton, Ohio, Attorney for Plaintiff-Appellee.

MARTIN S. PINALES, and JOHN FELDMEIER, and

JARROD M. MOHLER, Cincinnati, Ohio, Attorneys for

Defendant-Appellant.

DAVID GREER, Dayton, Ohio, Attorney for Defendant-

Appellant.

STEVE KELLER, Federal Public Defender, Columbus,

Ohio, Attorney for Defendant-Appellant.

RAVERT J. CLARK, Cincinnati, Ohio, Attorney for

Amicus Curie Ohio Association of Criminal Defense

Lawyers.

10-A

WOLFF, P. J.

Beth Lewis appeals from a judgment of the

Montgomery County Court of Common Pleas, which found

her in contempt of court for refusing to answer certain

questions before a grand jury. Lewis, who is an attorney,

refused to testify on the ground that the information sought

was protected by the attorney-client privilege.

The background of the case is as follows. In 1999,

nine-year-old Erica Baker disappeared in Kettering. At

some point during their investigation, the police apparently

received information that Jan Marie Franks may have been

inside a van that struck and killed Erica and that the people

in the van then took the body and disposed of it. No trace of

Erica has ever been found. The police sought to question

Franks about the information they had received, but she

was uncooperative. Lewis, a Federal Public Defender, had

represented Franks on unrelated federal offenses. The

police apparently suspect that Franks may have confided

information about Erica's disappearance to Lewis in the

course of their attorney-client relationship. The precise

basis for the state's belief that Franks was involved in

Erica's disappearance or that Franks had confided in Lewis

about involvement in that crime is unclear because we do

not have the grand jury testimony of the state's other

witnesses.

Franks died on December 30, 2001. The state

subsequently sought to cbtain testimony from Lewis before

a grand jury about Franks’ involvement in Baker's

disappearance. A subpoena was issued and, at the state's

request, the trial court found that the consent of Franks'

surviving spouse to Lewis's testimony constituted a valid

waiver of the attorney-client privilege. When Lewis was

called before the grand jury, however, she still refused to

testify on the ground that doing so would violate the

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attorney-client privilege. After the trial court repeatedly

ordered Lewis to testify, it found her in contempt and

ordered her to be held in the Montgomery County Jail.

Lewis filed a notice of appeal, and we granted a stay of

execution of the trial court's judgment pending appeal.

Lewis raises one assignment of error.

"THE TRIAL COURT ERRED, AS A MATTER

OF LAW, WHEN IT ORDERED ATTORNEY LEWIS TO

DISCLOSE CONFIDENTIAL ATTORNEY-CLIENT

COMMUNICATIONS AND WHEN IT HELD HER IN

CONTEMPT OF COURT FOR PROTECTING THOSE

COMMUNICATIONS."

The statutory provision at issue in the dispute about

whether Lewis must testify is R.C. 2317.02(A), which

provides:

The following persons shall not testify in certain

respects:

"(A) An attomey, 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 and except that, if the client voluntarily testifies or is

deemed by section 2151.421 of the Revised Code to have

waived any testimonial privilege under this division, the

attorney may be compelled to testify on the same

subject. ]" |

In this case, it is the consent of Franks' surviving

spouse that is at issue and, in the interest of simplicity, we

will refer in our discussion only to the surviving spouse,

rather than to "the surviving spouse or the executor or

administrator of the estate of the deceased client." Lewis

argues that the language "may testify *** by the express

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consent of the surviving spouse" means that where the

surviving spouse consents, the decision whether to testify is

within the attorney's discretion. She contends that this

language does not authorize a court to compel the attorney

to testify. She also contends that the language at the end of

R.C. 2317.02(A) sets forth the specific circumstances in

which the attorney "may be compelled to testify." This

latter language Jends support to her position that the former

language does not authorize compelling the attorney to

testify. The state, on the other hand, argues that the

language of R.C. 2317.02{A) lifts the prohibition that an

attorney shall not testify about communications with a

client, and the state concludes that an attorney must testify

when the surviving spouse consents and a grand jury

subpoena has been issued. Despite reaching such divergent

conclusions about the meaning of the statute, neither party

believes that the statute is ambiguous.

After studying the statute closely, we conclude that

the provision which states that the attorney may testify with

the consent of the surviving spouse must be interpreted to

mean that the attorney's testimony may be compelled under

those circumstances. The statute provides 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

*** of the deceased client[.]" This statute vests the attorney

with no more discretion when the surviving spouse

consents to the testimony than when the client himself or

herself consents to the testimony. We can envision no

situation, however, in which an attorney would have

discretion not to testify if the client validly consented to

such testimony. It is well settled that the privilege belongs

to the client, not to the attorney. See Annotation (1959), 67

A.L.R.2d 1268. 1269. Therefore, where the client has

consented, we believe that an attorney would have no

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choice but to testify about otherwise privileged

communications if called upon to do so. There may be

compelling policy reasons to differentiate between consent

given by a client and consent given by a client's surviving

spouse or representative. However, the language of the

statute puts the consent of the client and the consent of the

client's surviving spouse on equal footing and simply does

not allow us to draw such a distinction.

The Supreme Court has held that ‘ta lawyer's duty

‘not to use or disclose confidential client information *** is

superseded when the law specifically requires such use or

disclosure." (Citations omitted.) /n re Original Grand Jury

Investigation, 89 Ohio St.3d 544, 547, 733 N.E.2d 1135,

2000 Ohio 170. In so holding, the court stated that language

written in permissive terms can sometimes be interpreted to

require disclosure. In Original Grand Jury Investigation,

the court interpreted the language of Disciplinary Rule 4-

101(C)(2), which provides that an attorney may reveal

confidences or secrets when permitted under the

Disciplinary Rules or required by law or court order, to

require such disclosure by creating a "forced" exception to

confidentiality in certain circumstances. We interpret the

"discretionary" language of R.C. 2317.02(A) in the same

manner.

Lewis also argues that the legislature's use of the

language "the attorney may be compelled to testify" in the

latter portion of R.C. 2317.02(A) shows that the legislature

would have stated that testimony could be compelled with

the consent of the surviving spouse if that were truly what

it had intended in the earlier part of the statute. In other

words, Lewis claims that the legislature would have used

the words "may be compelled" throughout the statute if that

were the intended effect. While the statute may be

susceptible to this interpretation, we think the better

interpretation is that the second exception set forth under

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R.C. 2317.02(A) refers to an entirely different type of

situation than the first exception. The second exception

appears to embody a situation in which the client attempts

to exert the privilege but the privilege is deemed to have

been waived either by the client's own conduct (his own

testimony on the matter) or by R.C. 2151.421(A), which

requires attorneys to report suspected abuse or neglect. On

the other hand, the first exception appears to presume that

the attorney's testimony-and thus the waiver of the

privilege-would be in keeping with the client's wishes,

whether the consent is given by the client himself or by his

surviving spouse or representative. In the typical situation

under this exception- i.e., the testamentary exception,

which will be discussed further infra-a person who is

antagonistic to the attorney's client will not be seeking to

compel the attorney's testimony, and it would therefore be

unnecessary to couch the exception in the "may be

compelled to testify" language. The attorney's testimony is

voluntary, not compelled, in the sense that his client or his

deceased client's representative has consented to the

testimony. We recognize that, in some circumstances, such

as the situation presented here, the consent of the surviving

spouse is not necessarily consistent with the client's wishes,

but the legislature did not provide for a different procedure

in such a situation.

Lewis also characterizes R.C. 2317.02(A) as a

testamentary exception to the attorney-client privilege.

Such testamentary exceptions have been adopted by many

states in order to effectuate a client's wishes when a dispute

arises among potential heirs. Such exceptions are based on

the presumption that the client would have wanted to waive

his privilege in order to make his testamentary intentions

known. Lewis argues that, because this case does not

present a dispute among potential heirs to which her

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testimony would be addressed, the surviving spouse should

not be permitted to waive the privilege in this instance.

According to The New Wigmore: Evidentiary

Privileges § 6.13.2 (2002), California Evidence Code § 957

codifies a typical contemporary version of the testamentary

exception. It states: "There is no privilege under this article

as to a communication relevant to an issue between parties

all of whom claim through a deceased person, regardless of

whether the claims are by testate or intestate succession or

by inter vivos transaction." See, also, Hawaii Rule of

Evidence 503(c)(3). If. indeed, the Ohio legislature

intended only to create a testamentary exception to the

attorney-client privilege by adding to R.C. 2317.02(A) the

provision that a surviving spouse or representative of the

estate may consent to the attorney's testimony, its effort

was so inartful as to prevent us from giving the provision

that interpretation. The plain language of the statute in no

way limits the consent to disputes among heirs. Moreover,

the structure of the statute gives equal effect to the client's

own consent and to the consent of the surviving spouse or

representative, which makes it impossible for us to construe

the statute so narrowly as to apply only in testamentary

disputes. “We are not free to add words to a statute on the

basis that the addition strikes us as desirable, or because we

believe the legislature 'meant' to include it." LuCourse v.

Fleitz (1986). 28 Ohio St.3d 209, 212. citing Wheeling

Steel Corp. v. Porterfield (1970), 24 Ohio St.2d 24, 28, 53

Ohio Op. 2d 13. 263 N.E.2d 249. Thus, we cannot

countenance Lewis's interpretation of this provision as only

a testamentary exception to the attorney-client privilege.

Lewis also contends that the trial court's decision,

i.e., forcing her to testify, is contrary to public policy and to

the common law attorney-client privilege. We note,

however, that "public policy is best left to the legislative

branch, where it was entrusted by our Constitution

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makers." State v. Babcock (1982). 7 Ohio App.3d 104, 106-

107, 7 Ohio B. 136, 454 N.E.2d 556. "[W]hen the

Legislature has spoken, within the powers conferred by the

Constitution, its duly enacted statutes form the public

policy and prescribe the rights of the people, and such

statutes must be enforced, and not nullified by the judicial

and executive departments of this state. In this regard the

Legislature is supreme ***." Tumarkin v. Children of

Israel, Inc., (1965), 2 Ohio App.2d 60. 65, 31 Ohio Op. 2d

103, 206 N.E.2d 412, citing Probasco v. Raine (1893). 50

Ohio St. 378, 391, 34 N.E. 536. See, also, Stute v.

Smorgala (1990), 50 Ohio St.3d 222, 223-224, 553 N.E.2d

672. While the attorney-client privilege is rooted in the

common law, its particulars are a matter of state law,

articulated by the Ohio General Assembly in R.C.

2317.02(A). Although we may question the wisdom of

allowing a surviving spouse or representative to waive the

attorney-client privilege in non-testamentary matters, we

are not in a position to substitute our judgment for that of

the legislature, and we must presume that the statute, as

written, embodies the legislature's public policy

determinations.

The question presented in this case is analogous to

the question presented in Srate v. Smorgala. supra. In that

case, the Supreme Court considered whether the courts

should create a public policy limitation upon the statutorily

created physician-patient privilege in a case involving

drunk driving. The state wanted to obtain information about

the driver's blood alcohol level, but it had not requested a

blood alcohol test as authorized by R.C. 4511.191(A). /d. at

222. The doctor had obtained the information on his own

initiative as part of the patient's treatment. /d. The state

urged that the public interest in the effective prosecution of

drunk driving cases outweighed any considerations which

supported the uninhibited flow of information between

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doctor and patient. Id. at 223. The court held that judicial

policy preferences may not be used to override valid

legislative enactments, for the General Assembly should be

the final arbiter of public policy. Id. at 224. Although the

argument in Smorgala was that the courts should find an

exception to the physician-patient privilege, and the

argument here is that we should not enforce a legislatively

expressed exception to the attorney-client privilege, the

rationale for leaving these matters in the hands of the

legislature is the same.

Finally, Lewis emphasizes the fact that, in this case,

there is compelling evidence that the surviving spouse did

not effectuate the client's wishes in giving consent to the

attorney's testimony. It is undisputed that during Franks’

life, she had been unwilling to cooperate with the police or

with the Baker family in providing information about

Erica's fate or whereabouts, and there is nothing to suggest

that Franks would have felt any differently about her

attorney assisting in the investigation after her death. The

legislature, however, in the statute that it drafted, did not

provide for any weighing of the client's wishes. It could

have done so, and if it had anticipated a situation in which a

surviving spouse's consent would have clearly obviated the

client's wishes, perhaps it would have drafted the statute

differently. We note, however, that there are many

competing interests at play in the protection of the attorney-

client privilege. The attorney-client privilege promotes trust

in the representational relationship, thereby facilitating the

provision of legal services and_ ultimately — the

administration of justice. However, "an invocation of the

attorney-client privilege should not go unexamined 'when it

is shown that the interests of the administration of justice

can only be frustrated by [its] exercise." Swidler & Berlin

v. United States (1998), 524 U.S. 399. 118 S. Ct. 2081.

2088. 141 L. Ed. 2d 379 (O'Connor, J., dissenting).

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Especially in the criminal context, the legislature might

have reasonably concluded that, where a compelling law

enforcement interest is at stake, the harm of precluding

critical evidence that is unavailable by any other means

outweighs the potential disincentive to forthright

communication between attorney and client. Id. at 2090

(O'Connor, J.,-dissenting). We cannot speculate about the

full range of circumstances in which the legislature

intended for R.C. 2317.02(A) to apply. Nor can we

conclude that compelling Lewis to testify in this criminal

proceeding is so lacking in reason as to be beyond the

legislature's contemplation, notwithstanding the fact that

Franks might not have acquiesced in such testimony.

The assignment of error is overruled.

The judgment of the trial court is affirmed.

BROGAN, J. and FAIN, J., concur.

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IN THE COMMON PLEAS COURT OF

MONTGOMERY COUNTY, OHIO

STATE OF OHIO CASE NO. 2002 CR 01975

Plaintiff(s) JUDGE MICHAEL T. HALL

v.

DECISION, ENTRY AND

ORDER

JOHN DOE FILED UNDER SEAL

Defendant(s)

This matter is before the Court pursuant to the

Court’s supervisory power over the Montgomery County

Grand Jury as assigned under Local Rule 1.19 (III) (B) (1).

Grand Jury Proceedings are secret and the Court has

proceeded in that manner.

The Montgomery County Grand Jury is involved in

an investigation in the above captioned case. By Motion

filed June 25, 2002, the State of Ohio requested that the

Court accept the surviving spouse’s waiver of the attorney-

client privilege of one Jan Marie Franks, aka Jan Marie

Parson’s, aka Jan M. Franks, aka Jan Franks, who is now

deceased. A hearing was conducted on matter and, byentry

filed June 25, 2003, at 1:40pm, this Court found that Shane

Nolan Franks was the surviving spouse of Jan Marie

Franks, etc., and further found that Shane Nolan Franks

waived the attorney-client privilege of the decedent respect

to representation by counsel in United States v. Jan Marie

Parsons, Case No. CR-3-98-116, and with respect to

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representation in State of Ohio v. Jan M. Franks. in

Montgomery Co. Case No. 2000-CR-1139.

The Court further found that a witness before the

Grand Jury, Beth Lewis, an attomey admitted to the

practice of law in the State of Ohio, was called before the

Grand Jury to testify. Two(2) sets of 10 written questions

were submitted to the witness and she refused to answer

those questions, claiming upon the advice of counsel. that

answering those questions would be a violation of attorney-

client privilege. Pursuant to Ohio Revised Code § 2939.14,

the Court was informed of the Interrogatories and the

refusal in writing. The Court examined the Interrogatories

and the excuses. By entry of June 25, 2002. filed at

3:00p.m., the Court determined that the witness. Beth

Lewis, was required to answer each of the 10

Interrogatories in each of the two (2) sets of questions, and

the Grand Jury was so informed.

Thereafter, the witness again appeared before the

Grand Jury, and refused to answer the same Interrogatories.

Pursuant to Ohio Revised Code §2939.14, an In-

Chambers Conference was thereafter conducted on June 25.

2002, where arguments were received concerning the status

of the issues. The Court indicated at that time that various

parties would re-convene for further proceedings on record

on June 26, 2002, at 1:00p.m.

As a result of that hearing, pursuant to Ohio

Revised Code §2939.15, the Court determines that the

witness, Beth Lewis, was required to answer the

Interrogatories previously stated, that she had refused. and

that she was brought before this Court,

After listening to the evidence and arguments of

counsel, the Court confirms that the attorney-client

privilege in this matter has been waived and that there has

been a refusal to answer the questions before the Grand

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Jury. The Court may proceed “as if such witness had been

- interrogated and refused to answer in open court.” ORC

§2929.15. The Court finds the witness in Contempt of

Court. The witness is given the opportunity to purge the

Contempt by answering the questions before the Grand

Jury before 12:00 noon on June 27, 2002. If not thereby

purged, the witness shall report to the Montgomery County

Jail to be confined until she purges herself of the Contempt

or is otherwise released as provided by law.

This Decision is ORDERED to be filed under seal.

The parties or counsel are not to disclose the contents of

this Decision without further Court order.

SO ORDERED.

JUDGE MICHAEL T. HALL