State ex rel. Leslie v. Ohio Hous. Fin. Agency

Decision Date13 April 2005
Docket NumberCase No. 2004-0105.
Citation105 Ohio St.3d 261,824 NE 2d 990
CourtOhio Supreme Court
PartiesThe State ex rel. Leslie, Appellee and Cross-Appellant, v. Ohio Housing Finance Agency et al., Appellants and Cross-Appellees.

2005-Ohio-1508
105 Ohio St.3d 261
824 NE 2d 990

2005-Ohio-1508

The State ex rel. Leslie, Appellee and Cross-Appellant,
v.
Ohio Housing Finance Agency et al., Appellants and Cross-Appellees.

Case No. 2004-0105.

In the Supreme Court of Ohio.

Submitted January 11, 2005.

Decided April 13, 2005.


O'CONNOR, J.

{¶ 1} In this case, we must decide whether the attorney-client privilege applies to state agencies and their in-house counsel when that counsel is not an Assistant Attorney General. After examining the scope and purpose of the attorney-client privilege, we conclude that the privilege applies to government clients and that notwithstanding various statutes cited in opposition, the privilege exists between a state agency and its in-house counsel even if that counsel is not an Assistant Attorney General.

{¶ 2} From August 2000 through February 2002, the Ohio Department of Development employed appellee and cross-appellant, attorney Mark A. Leslie, as its Chief of Compliance. In that capacity, Leslie's duties included conducting certain ministerial functions for appellant and cross-appellee Ohio Housing Finance Agency in compliance with state law. Effective March 1, 2002, the Department of Development terminated Leslie's employment.

{¶ 3} In October 2002, Leslie filed a complaint in the Court of Appeals for Franklin County naming appellants and cross-appellees Ohio Housing Finance Agency, Chief Legal Counsel for the Department of Development, and the board members and other officials of the Ohio Housing Finance Agency as respondents. Leslie also named the State Treasurer, State Auditor, and two Ohio Department of Commerce officials as respondents. Leslie alleged that appellants and other respondents had violated certain laws. For example, Leslie claimed that the Ohio Housing Finance Agency had disbursed unclaimed funds in the form of loans that were not authorized by R.C. Chapter 175. Leslie requested a writ of mandamus to compel appellants and other respondents to cease the alleged illegal activities and to comply with the applicable law. Leslie further requested that the State Auditor perform audits to ensure compliance.

{¶ 4} On December 10, 2002, appellants and other respondents moved to dismiss Leslie's complaint. The State Auditor attached a 2001 audit to his dismissal motion. The court of appeals treated the auditor's motion as one for summary judgment and set times for Leslie to respond to the motions.

{¶ 5} On December 30, 2002, Leslie replied to the dismissal motions. His reply contained two lengthy endnotes describing various documents and explaining his discharge. On January 14, 2003, Leslie replied to the auditor's motion for summary judgment. He attached various documents, including several that disclosed legal advice from in-house counsel to Ohio Housing Finance Agency staff.

{¶ 6} On January 15, 2003, the court of appeals magistrate recommended granting the motions of appellants and other respondents and dismissing Leslie's mandamus claim. On January 16, 2003, the magistrate denied the auditor's summary-judgment motion as moot.

{¶ 7} On January 27, 2003, appellants, Ohio Housing Finance Agency, its staff, its board, and the Chief Legal Counsel of the Department of Development, moved to strike the endnotes from Leslie's December 30, 2002 reply to appellants' motion to dismiss, seal those portions protected by attorneyclient privilege, and obtain a protective order to prohibit Leslie's disclosure of privileged records.

{¶ 8} On February 11, 2003, appellants filed a second motion to strike and seal and for a protective order. This motion related to Leslie's affidavit and attachments to his January 14, 2003 reply to the auditor's summary-judgment motion. Appellants claimed that the affidavit and certain attachments were protected by attorney-client privilege.

{¶ 9} On February 20, 2003, Leslie replied to the motions to strike and seal and for protective orders. Leslie again attached documents to his reply. Appellants moved to strike Leslie's February 20, 2003 reply as untimely.

{¶ 10} On June 17, 2003, the court of appeals adopted the magistrate's recommendation to dismiss Leslie's mandamus claim but stayed the dismissal until the magistrate ruled upon the pending motions. On August 28, 2003, the magistrate recommended that the court of appeals (1) grant appellants' motion to strike the endnotes in Leslie's December 30, 2002 reply, (2) deny appellants' motion to seal and for a protective order on Leslie's December 30, 2002 reply, (3) deny appellant's motion to strike and seal and motion for a protective order on Leslie's January 14, 2003 reply, (4) grant appellants' motion to strike the attachments to Leslie's February 20, 2003 reply, and (5) deny appellants' motion to strike Leslie's February 20, 2003 response as untimely. The magistrate applied the court of appeals' precedent in State ex rel. Olander v. French (July 16, 1996), Franklin App. No. 96APD04-501, 1996 WL 403802, which held that the attorneyclient privilege does not exist between a state agency and its in-house counsel unless the attorney is a member of the Attorney General's office.

{¶ 11} Appellants objected to the magistrate's decision. On December 9, 2003, the court of appeals overruled the objections and adopted the magistrate's decision. Nevertheless, two of the three court of appeals' judges "reluctantly" concurred "because Olander has not been overruled and remains the law in this district." These judges believed that Olander "was wrongly decided."

{¶ 12} On January 16, 2004, appellants filed their notice of appeal, and on January 20, 2004, Leslie cross-appealed. The cause is now before this court upon an appeal and cross-appeal as of right.

{¶ 13} On July 14, 2004, we granted the parties' requests for oral argument. State ex rel. Leslie v. Ohio Hous. Fin. Agency, 102 Ohio St.3d 1528, 2004-Ohio-3580, 811 N.E.2d 1148. On January 11, 2005, we heard oral argument on this appeal and cross-appeal.

Appeal: Attorney-Client Privilege

{¶ 14} Appellants assert that the court of appeals erred in applying State ex rel. Olander v. French (July 16, 1996), Franklin App. No. 96APD04-501, 1996 WL 403802, in which the court of appeals held that the "attorney-client privilege does not exist between members of a given state agency or department except the Office of the Attorney General." Appellants claim that eight of the attachments to Leslie's January 14, 2003 reply to the auditor's motion for summary judgment and one of Leslie's attachments to his February 20, 2003 reply to appellants' motions to strike and seal and for protective orders should have been stricken from the record and sealed based on attorney-client privilege.

{¶ 15} Leslie counters that the attorney-client privilege does not apply to in-house counsel of state agencies and that the court of appeals properly applied its Olander precedent to exempt the challenged records from the privilege.

{¶ 16} For the following reasons, we find that rejecting Leslie's contentions and the court of appeals' Olander decision is consistent with the weight of precedent and markedly advances the purpose of the attorney-client privilege.

Attorney-Client Privilege: Purpose and Elements

{¶ 17} "The privilege of a witness, person, state or political subdivision thereof shall be governed by statute enacted by the General Assembly or by principles of common law as interpreted by the courts of this state in the light of reason and experience." Evid.R. 501.

{¶ 18} In Ohio, the attorney-client privilege is governed by statute, R.C. 2317.02(A), and in cases that are not addressed in R.C. 2317.02(A), by common law. See, e.g., R.C. 2317.02(A), which provides that in general, an attorney shall not testify "concerning a communication made to the attorney by a client in that relation or the attorney's advice to a client"; see, also, State v. McDermott (1995), 72 Ohio St.3d 570, 574, 651 N.E.2d 985, distinguishing State v. Post (1987), 32 Ohio St.3d 380, 513 N.E.2d 754 ("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 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"). (Emphasis added.)

{¶ 19} "The attorney-client privilege is one of the oldest recognized privileges for confidential communications." Swidler & Berlin v. United States (1998), 524 U.S. 399, 403, 118 S.Ct. 2081, 141 L.Ed.2d 379. The privilege dates at least to "the reign of Elizabeth I, where the privilege was already well established." Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, 660, 635 N.E.2d 331.

{¶ 20} "Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves the public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client." Upjohn Co. v. United States (1981), 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584; Cargotec, Inc. v. Westchester Fire Ins. Co., 155 Ohio App.3d 653, 2003-Ohio-7257, 802 N.E.2d 732, ¶ 7. "By protecting client communications designed to obtain legal advice or assistance, the client will be more candid and will disclose all relevant information to his attorney, even potentially damaging and embarrassing facts." (Footnote omitted.) 1 Rice, Attorney-Client Privilege in the United States (2d Ed.1999) 14-15, Section 2.3; Taylor v. Sheldon (1961), 172 Ohio St. 118, 121, 15 O.O.2d 206, 173 N.E.2d 892 ("the purpose of this rule is...

To continue reading

Request your trial
125 cases
  • State v. Brunson
    • United States
    • Ohio Supreme Court
    • December 5, 2022
    ... 2022-Ohio-4299 The State of Ohio, Appellee, v ... common law. State ex rel. Leslie v. Ohio Hous. Fin ... Agency, 105 Ohio ... ...
  • State ex rel. Dann v. Taft
    • United States
    • Ohio Supreme Court
    • April 13, 2006
    ...R.C. 149.43 because their release is "prohibited by state or federal law" under R.C. 149.43(A)(1)(v). In State ex rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St.3d 261, 2005-Ohio-1508, 824 N.E.2d 990, ¶ 24, we observed that records of communications between attorneys and their state-gov......
  • Cincinnati Enquirer v. Hamilton Cnty. Bd. of Comm'rs
    • United States
    • Ohio Court of Claims
    • August 25, 2020
    ...disclosure by himself or by the legal adviser, (8) unless the protection is waived.'" (Citations omitted.)State ex rel. Leslie v. Ohio Housing Fin. Agency, 105 Ohio St.3d 261, 2005-Ohio-1508, 824 N.E.2d 990, ¶ 21. A bare, general assertion that the privilege applies to communications does n......
  • Suffolk Const. v. Capital Asset Management
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • July 13, 2007
    ...of housing authority concerning property inspection at which attorney was present privileged); State ex rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St.3d 261, 267, 824 N.E.2d 990 (2005) (privilege protects release of public records; allowing privilege would not lead to undesirable resul......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT