In re Grand Jury Subpoenas, 2005 Ohio 4607 (OH 8/24/2005), No. 04CA2966.

CourtUnited States State Supreme Court of Ohio
Writing for the CourtWilliam H. Harsha
PartiesIn re: Grand Jury Subpoenas Issued to Alice Lynd, Esq.
Decision Date24 August 2005
Docket NumberNo. 04CA2978.,No. 04CA2966.

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2005 Ohio 4607
In re: Grand Jury Subpoenas Issued to Alice Lynd, Esq.
No. 04CA2966.
No. 04CA2978.
Court of Appeals of Ohio, Fourth District, Scioto County.
August 24, 2005.

Richard M. Kerger and Kimberly A. Donovan, Toledo, Ohio, for Appellant.

Mark E. Piepmeier and William E. Breyer, Cincinnati, Ohio, for Appellee.

DECISION AND JUDGMENT ENTRY

WILLIAM H. HARSHA, Judge.


{¶1} Alice Lynd appeals the trial court's judgment finding her in contempt of court for failing to testify before the Scioto County Grand Jury. She asserts that the court abused its discretion by finding her in contempt because its order to testify was unlawful as it required her to violate the attorney-client privilege. However some evidence supports the court's finding that an attorney-client relationship did not cover the statements Lynd seeks to keep confidential. Because the statements were not privileged, the trial court appropriately ordered her to testify before the grand jury. When Lynd failed to comply with the court's lawful order, the court had the discretion to find her in contempt. There is nothing in the record to suggest that the court acted arbitrarily, irrationally

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or capriciously in doing so. Because the court did not abuse its discretion, we affirm its judgment.

{¶2} In early 2004, the Lucasville Riot Special Prosecutor learned Lynd had information that inmate Eric Girdy participated in the killing of inmate Earl Elder during the 1993 Lucasville prison riot. Subsequently, the prosecutor issued a grand jury subpoena to Lynd requesting her to testify about her conversation with Girdy.

{¶3} Lynd filed a motion to quash the subpoena. She contended that the attorney-client privilege protected any information she had learned from Girdy and prohibited her from testifying before the grand jury regarding her conversation with him. Lynd asserted that at the time she learned information about the Elder murder, Girdy was her client. She explained that she initially met Girdy in 1998 when she interviewed him to see whether he possessed any information that might help her client, George Skatzes, seek postconviction relief. Lynd asserted that Girdy "came to rely on [her] advice and/or counsel; having communications with her which fell squarely within the ambit of those privileged as between attorney and client, although no such relationship as between Lynd and Girdy was formalized, until 2001 when Lynd became counsel for a plaintiff class of prisoners of which Girdy is a member."

{¶4} After interviewing Girdy in her efforts to further Skatzes' postconviction claims, Lynd executed an affidavit that

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memorialized her conversation with Girdy and she forwarded it to Skatzes' pro bono lawyers. The affidavit contained statements that implicated Girdy and exculpated Skatzes in certain events surrounding the Lucasville prison riots. Lynd asserted that Skatzes' pro bono lawyers used her affidavit when filing Skatzes' postconviction petition, over her "strong objection." Lynd recognizes that the affidavit is public record now, but claims that the additional information she may have is privileged.

{¶5} At the hearing on the motion to quash, Lynd testified she was representing Skatzes when she first met with Girdy in 1998. Girdy was aware that she represented Skatzes. Admittedly, the reason she visited Girdy was in "the hope of getting Mr. Skatzes some type of post-conviction relief." She stated that she met with Girdy "because we were speaking with a number of prisoners who had been involved in the Lucasville riot trying to get information that could be helpful to George Skatzes, but it was in that context that Mr. Girdy sought assistance for himself that was unrelated to anything that we were doing for George Skatzes. He didn't ask us to try to get into what he did or didn't do. He was asking more for enforcement of his plea agreement." She believes that an attorney-client relationship existed because Girdy requested legal services, which she provided during 1998 and again in 2000. Lynd stated that during the 1998 interview, Girdy requested help regarding the enforcement of his plea agreement, his right to refuse a

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polygraph, and his possible placement in Administrative Control, Protective Control, the Ohio State Penitentiary, or out-of-state transfer. Girdy asked her to contact various third parties and provide him with legal advice. Lynd performed some of the following services: she contacted other attorneys for advice; she made phone calls to the Ohio State Highway Patrol to obtain an address that Girdy needed; she spoke with employees of the Correctional Institution Inspection Committee; she phoned the public defender because Girdy had requested a document and did not receive a response; and she attempted to locate his prior counsel.

{¶6} From the end of 1998 to May of 2000, Lynd had no contact with Girdy. In May of 2000, Girdy wrote her a letter regarding the conditions at the Ohio State Penitentiary, which caused Lynd to later visit him in prison. Lynd asked Girdy additional questions about what he observed during the Lucasville riot. During this interview, Girdy "made a statement in relation to his own participation in what happened to Earl Elder during the Lucasville disturbance in 1993." Lynd testified that Girdy "confided in me something so serious that there is no way he would have said that if he didn't regard me as his attorney." She is "absolutely convinced that he confided in me expecting me to keep his confidence." However, because Lynd represented Skatzes and because the information would help Skatzes' postconviction relief claims, she informed Girdy that she would

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have to share the information with Skatzes' pro bono attorneys whom she was assisting.

{¶7} Following the hearing, the parties submitted written arguments. The state argued after Lynd told Girdy that she would have to relay the information to Skatzes' attorneys, Girdy's failure to object resulted in waiver of the privilege. The state noted that Lynd "swears that she specifically told Girdy that she would have to tell George Skatzes and his attorneys what Girdy had told her. She then proceeded to do just that * * *. She then memorialized what Girdy said in affidavit form, and sent it to Skatzes' attorneys (who obviously were not counsel for Girdy) who then filed it in Court. Lynd[`]s late claim of privilege is transparently false."

{¶8} The trial court subsequently denied the motion to quash. The court found that Lynd first met with Girdy in 1998 to help Skatzes obtain postconviction relief. Lynd stated in an affidavit: "I told Mr. Girdy that I will have to tell George Skatzes[`] attorneys what he had told us." The court observed: "There is no claim that Girdy told her not to do this. In fact, Lynd did tell those attorneys, and gave them an affidavit implicating Girdy in the homicide. This is a complete refutation of her current claim of attorney-client relationship." The court observed that Lynd did not subpoena Girdy to testify at the hearing regarding her motion to quash. The court concluded that Lynd failed to meet her burden of proof that an attorney-client

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relationship existed and denied her motion to quash the subpoena.

{¶9} Lynd subsequently failed to testify before the grand jury, and the court found her in contempt. She timely appealed the court's judgment1 and assigns the following error:

The trial court abused its...

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