[This opinion has been published in Ohio Official Reports at
72 Ohio St.3d 570.]
THE STATE OF OHIO, APPELLANT, v. MCDERMOTT; LAWRENCE, APPELLEE.
[Cite as State v. McDermott, 1995-Ohio-80.]
R.C. 2317.02(A) provides the exclusive means by which privileged communications
directly between an attorney and a client can be waived.
R.C. 2317.02(A) provides the exclusive means by which privileged
communications directly between an attorney and a client can be waived.
(Swetland v. Miles [1920], 101 Ohio St. 501,
130 N.E. 22, paragraph three
of the syllabus followed; State v. Post [1987], 32 Ohio St.3d 380,
513
N.E.2d 754, paragraph one of the syllabus, modified.)
(No. 94-461—Submitted April 4, 1995—Decided July 26, 1995.)
APPEAL from the Court of Appeals for Lucas County, No. L-93-010.
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{¶ 1} The state of Ohio appeals from the judgment of the court of appeals
reversing the decision of the trial court which found Attorney John Lawrence
("Lawrence") in contempt of court for refusing, in defiance of a court order, to
testify regarding a communication that he claimed was protected by the attorney-client privilege.
{¶ 2} Lawrence was Jeffrey McDermott's attorney when the murder of
Elmwood Poe McKown occurred. Five years later, the state accused McDermott
of McKown's murder. The state subpoenaed Lawrence to testify at McDermott's
trial regarding a conversation with McDermott immediately after the murder.
McDermott had not consented to any disclosure by Lawrence.
{¶ 3} On three occasions during the criminal proceeding against
McDermott, the trial court ruled on the issue of whether Lawrence must testify.
Each ruling prompted a separate appeal to the Sixth District Court of Appeals.
SUPREME COURT OF OHIO
{¶ 4} The first ruling occurred because the prosecution moved to compel
Lawrence's testimony at a post-indictment, investigatory grand jury hearing
concerning his knowledge of McDermott's involvement in the murder. At that
hearing, Warren Lawrence ("Warren"), Attorney Lawrence's brother, testified that
McDermott told him about the conversation that McDermott had with Lawrence,
in which McDermott admitted to the attorney that he killed McKown. Lawrence
testified that he represented McDermott on three separate occasions, and any
conversation he had with McDermott in 1985 was in his role as McDermott's
attorney. The trial court found that Warren's testimony concerning McDermott's
conversation with Lawrence raised a presumption that McDermott waived the
attorney-client privilege and ordered Lawrence to appear for limited questioning
about McDermott's presumed waiver. At that hearing, Lawrence refused to divulge
the substance of any conversations that he had with McDermott while serving as
McDermott's attorney. The trial court held Lawrence in contempt and both he and
McDermott appealed. The court of appeals reversed the finding of contempt,
holding that the trial court had insufficient evidence of waiver to warrant ordering
Lawrence to testify. State v. McDermott (1991), 73 Ohio App.3d 689,
598 N.E.2d
147.
{¶ 5} Upon remand, the trial court held a hearing to supplement the record
and to determine whether McDermott waived the attorney-client privilege. Again,
Warren testified. Another witness also testified that McDermott disclosed to him
the substance of McDermott's conversation with Attorney Lawrence and that
McDermott made incriminating statements to him about the murder. The trial court
found that the state had not established waiver because there was no showing that
McDermott voluntarily disclosed the actual content of the entire conversation.
Therefore, his attorney could not be compelled to testify. The prosecution appealed
and the court of appeals reversed. State v. McDermott (1992), 79 Ohio App.3d 772,
607 N.E.2d 1164. Relying on paragraph one of the syllabus in State v. Post (1987),
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January Term, 1995
32 Ohio St.3d 380,
513 N.E.2d 754, the appellate court held that the trial court erred
in holding that waiver cannot occur unless the client discloses to a third party the
exact content of the entire conversation. This court denied McDermott's attempt to
appeal. State v. McDermott (1992),
65 Ohio St.3d 1430,
600 N.E.2d 675.
{¶ 6} The issue of waiver arose for the third time during McDermott's trial.
The prosecution called Lawrence during its case-in-chief. He again refused to
testify, for which he was held in contempt and jailed for two days. Upon appeal,
the trial court's finding of contempt was reversed, with the appellate court
overruling its previous decision regarding waiver. The court of appeals decided
that its earlier reliance on the Post syllabus was mistaken, and that the law on the
subject is found in Swetland v. Miles (1920), 101 Ohio St. 501,
130 N.E. 22.
Despite the broad language of the Post syllabus, the court of appeals reconciled
Post with Swetland by discerning that Post necessarily applies only to those
communications deemed to be privileged by common law, not those that are
covered by the statutory privilege.
{¶ 7} The cause is now before this court pursuant to the allowance of a
motion to certify the record.
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Anthony G. Pizza, Lucas County Prosecuting Attorney, and J. Christopher
Anderson, Assistant Prosecuting Attorney, for appellant.
Cooper, Straub, Walinski & Cramer and Richard Walinski; Kaplan,
Richardson, Rost & Helmick and Jon D. Richardson, for appellee.
Harvey B. Bruner & Associates, Harvey B. Bruner and Bret Jordan, urging
affirmance for amicus curiae, Ohio Academy of Trial Lawyers.
Squire, Sanders & Dempsey and Terri-Lynne B. Smiles, urging affirmance
for amicus curiae, Ohio State Medical Association.
Kaplan & Lipson and Samuel Z. Kaplan; David H. Bodiker, Ohio Public
Defender, Gloria Eyerly and Barbara Farnbacher, Assistant Public Defenders,
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urging affirmance for amici curiae, Ohio Association of Criminal Defense Lawyers
and Office of the Ohio Public Defender.
Charles G. Hallinan; Dinsmore & Shohl and Mark A. Vander Laan;
Shumaker, Loop & Kendrick and Thomas G. Pletz, urging affirmance for amici
curiae, Catholic Archdiocese of Cincinnati, Daniel E. Pilarczyk, Archbishop, and
Catholic Diocese of Toledo.
Albert L. Bell and Eugene P. Whetzel, urging affirmance for amicus curiae,
Ohio State Bar Association.
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COOK, J.
{¶ 8} In Ohio, attorneys, as well as other professionals, have presumed that
professional discussions with clients may not later be the subject of testimony by
that professional, even when the client has told a third person what was discussed.
A contrary view, however, is apparent from paragraph one of the syllabus of State
v. Post (1987), 32 Ohio St.3d 380,
513 N.E.2d 754, which reads: "[a] client's
disclosure to a third party of communications made pursuant to the attorney-client
privilege breaches the confidentiality underlying the privilege, and constitutes a
waiver thereof." Due to what we now judge to be its overbreadth, we modify, as far
as it is inconsistent with our opinion today, the waiver proposition of the Post
syllabus. Instead, we follow Swetland v. Miles (1920),
101 Ohio St. 501, 504,
130
N.E. 22, 23, where this court held that the Ohio statute on privileged
communication (now R.C. 2317.02) evinced the sole criteria for waiving the
privilege: (1) the client expressly consents, or (2) the client voluntarily testifies on
the same subject.
{¶ 9} In Swetland, this court analyzed G.C. 11494, the predecessor to R.C.
2317.02. The appellant requested that the court judicially extend the statute to
provide for an additional waiver of the testimonial privilege. Although that statute
provided only two circumstances by which the client could waive the privilege, the
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January Term, 1995
client's express consent or the client's testifying on the same subject, the appellant
urged the court to adopt the further exception of allowing the client's personal
representative or heirs to waive the privilege when the client is deceased. As the
language of the statute was comprehensive, this court ruled that the General
Assembly may broaden the statutory exceptions which constituted waiver of the
privileged communications but that the courts should not augment the enumerated
waivers.1 "The argument addressed to this court might be addressed to the
legislature with persuasive power … but it is not for this court to make such an
amendment." Id., 101 Ohio St. at 504-505, 130 N.E. at 23.
{¶ 10} The General Assembly has plainly and distinctly stated that the
privileges of R.C. 2317.02 are to be given effect absent specific statutory
exceptions. State v. Smorgala (1990), 50 Ohio St.3d 222, 223,
553 N.E.2d 672,
674. See, also, State ex rel. Lambdin v. Brenton (1970),
21 Ohio St.2d 21, 24,
50
O.O.2d 44, 46,
254 N.E.2d 681, 683. We believe that the reasoning in Swetland
applies equally well to the state's contention in this case. The state, however,
contendsthat it is our decision in Post which controls.
{¶ 11} In Post, an attorney employed a polygraph examiner as his agent.The
client of the attorney submitted to a polygraph examination without his attorney
present, and in the course of the examination, confessed in writing to a crime. The
client later told a third party about his confession to the polygraph examiner. The
trial court ruled that the written statement as well as the polygraph examiner's
testimony was admissible because the client's disclosure to the third party waived
any privilege. The client appealed, asserting that the polygraph examiner's
testimony should not have been allowed into evidence. This court found the client's
discussion with the polygraph examiner privileged but also found that privilege
1. The legislature subsequently modified the statute to include waiver by the "surviving spouse or
the executor or administrator of the estate of the deceased client." 125 Ohio Laws 313.
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waived when the client revealed the content of the privileged communication to a
third party. At common law, the attorney-client privilege could be waived either
expressly or by conduct implying waiver. See 8 Wigmore, Evidence (McNaughton
Rev. 1961), Section 2327.
{¶ 12} The statute that controls the case before us is R.C. 2317.02(A),
which states:
"The following persons shall not testify in certain respects:
"(A) An attorney, concerning a communication made to him by his client
in that relation or his advice to his client, except that the attorney may testify by
express consent of the client … and except that, if the client voluntarily testifies
… the attorney may be compelled to testify on the same subject." (Emphasis
added.)
{¶ 13} In Weis v. Weis (1947), 147 Ohio St. 416,
34 O.O. 350,
72 N.E.2d
245, paragraph four of the syllabus, we held that G.C. 11494 (the predecessor to
R.C. 2317.02) affords "protection only to those relationships which are specifically
named therein." After that decision, the General Assembly adopted R.C. 2317.021,
which defines the term "client," as used in the privilege statute, to include the
client's "agent, employee, or representative." The definition of the term "attorney"
has not been amended to include an agent, employee, or representative of the
attorney. While communications directly between the client and attorney fall
squarely within R.C. 2317.02(A), communications between a client and an agent
of the attorney are not protected by the statute.
{¶ 14} We, therefore, distinguish Post from the present case. In the case
before us, Attorney Lawrence refused to testify based on R.C. 2317.02(A) because
here the discussions were directly between the attorney and the client. Post,
however, involved the agent of an attorney, a polygrapher. When the client
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January Term, 1995
confessed to the polygrapher, the attorney was not present.2 The Post court,
therefore, recognized a judicially created attorney-client privilege where, without
the presence of the attorney, the communications between the client and the
polygrapher, the attorney's agent, were deemed privileged. The court then properly
decided how that common-law attorney-client privilege could be waived. The
circumstances of waiver recognized in that case have no relationship to
communications that fall squarely within the statutory privilege based on direct
communications between attorneys and clients.
{¶ 15} To the extent that paragraph one of the syllabus of Post is overbroad
and would affect the statutory attorney-client privilege by adding a waiver not
enumerated in R.C. 2317.02(A), we modify it. The syllabus of a Supreme Court
opinion is not to be construed as being broader than the facts of that specific case
warrant. Williamson Heater Co. v. Radich (1934), 128 Ohio St.2d 124, 126,
190
N.E. 403, 404; DeLozier v. Sommer (1974),
38 Ohio St.2d 268, 271,
67 O.O.2d
335, 337,
313 N.E.2d 386, 389. The decision in Post, however, remains a valid
judgment of this court despite our limiting of paragraph one of the syllabus.
{¶ 16} As we decline to add a judicially created waiver to the statutorily
created privilege, we hold that R.C. 2317.02(A) provides the exclusive means by
which privileged communications directly between an attorney and a client can be
waived. Lawrence's act of refusing to testify was not contemptuous because
McDermott had not waived the attorney-client privilege—he neither expressly
consented to Lawrence's testifying nor did he voluntarily testify on the same
subject.
{¶ 17} Accordingly, we affirm the judgment of the court of appeals.
Judgment affirmed.
2. While this court's opinion in Post does not clearly indicate whether the defendant's attorney was
present at this confession, the defendant's brief to this court in Post stated that the attorney was not
present.
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MOYER, C.J., DOUGLAS, WRIGHT, FAIN and PFEIFER, JJ., concur.
F.E. SWEENEY, J., concurs in judgment only.
MIKE FAIN, J., of the Second Appellate District, sitting for RESNICK, J.
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