¶1 I concur in part and dissent in part.
¶2 I concur in the majority opinion except for the handling of appellant’s fifth assignment of error, which deals with the trial court’s order requiring appellant’s attorney to turn over to the prosecution the notes taken by Michalik in her review of appellant’s records. These notes were made at the request of appellant’s attorney. These notes were in the file of appellant’s attorney. These notes were intermingled with notes made by appellant’s attorney on the same documents.
¶3 The majority, while acknowledging that the trial court erred in ordering disclosure of the notes, concludes that such error was harmless. I disagree.
¶4*707 The standard propounded by the majority asks whether the “remaining evidence” constitutes overwhelming proof of guilt. I would find this standard appropriate only where the nature of the error was the improper admission of evidence. Where the error consists of improperly compelling defense counsel to deliver investigative notes to the prosecution, it is illogical to examine the persuasive force of the “remaining evidence” because the harm arises not from the presentation of evidence, but from the disclosure of information. The harm in improperly ordering disclosure is that knowledge, unlike evidence, cannot be excluded. Once knowledge is obtained, the damage is done.
¶5 I would find, first, that the error in this case is an error of constitutional dimensions. The right to effective assistance of counsel is a constitutional right. Effective assistance includes both investigation and loyalty. State v. Johnson (1986), 24 Ohio St.3d 87, 90, 24 OBR 282, 284, 494 N.E.2d 1061, 1063 (investigation); Glasser v. United States (1942), 315 U.S. 60, 70, 62 S.Ct. 457, 464, 86 L.Ed. 680 (loyalty). Thus, the attorney has the duty to investigate, and the client has the right to insist that the investigation not be improperly used to aid in the conviction. Furthermore, the practical effect of improperly ordering disclosure of information is little different from the effect of a government agent intruding on the attorney-client relationship. The United States Supreme Court found that government intrusion into the attorney-client relationship affects the constitutional right to counsel. United States v. Morrison (1981), 449 U.S. 361, 101 S.Ct. 665, 66 L.Ed.2d 564. I would find that an error which allows defense-generated investigative notes to be used to the detriment of the client is a constitutional error.
¶6 When the error is of constitutional dimensions, then reversal is mandatory unless this court is convinced beyond a reasonable doubt that the outcome would have been the same but for the error. Chapman v. California (1967), 386 U.S. 18, 22, 87 S.Ct. 824, 827, 17 L.Ed.2d 705. Where the error consists of compelling disclosure of information, then the state should bear the heavy burden of persuading this court that the information was inconsequential and did not contribute in any way to the state’s ability to obtain a conviction. In this case, we cannot know what strategic advantage was gained by having access to the investigative notes. I would therefore find that the trial court erred and that the error was not harmless beyond a reasonable doubt. I would reverse and remand to allow the trial court to fashion an appropriate remedy to avoid contamination of a second trial by determining what specifically was disclosed and by ensuring that the disclosed information is not used by the state.