# Petition for Writ of Certiorari — Lewis v. Ohio

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2004
- **Citation:** 543 U.S. 943

## Text

‘(/) 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

12-A

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

13-A

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

14-A

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

15-A
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

16-A

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

17-A

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.

19-A

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

20-A
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

21-A

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0986%3A1. Public record. Not legal advice.