PROBATE Ohio Probate Law Journal | March/April 2020 LAW Volume 30, Issue 4 Probate Law Journal of Ohio JOURNAL of OHIO by Mark M

The Attorney-Client Privilege: Three’s A Crowd?, 30 No. 4 Ohio Prob. L.J. NL 8

30 No. 4 Ohio Prob. L.J. NL 8 PROBATE Ohio Probate Law Journal | March/April 2020 LAW Volume 30, Issue 4 Probate Law Journal Of Ohio JOURNAL OF OHIO By Mark M. Mikhaiel, Esq. a0 PROBATE LAW JOURNAL OF OHIO MARCH/APRILMAY/JUNE 2019 2020 VOLUME | VOLUME 29 30 |ISSUE ISSUE 4 5 IN THIS ISSUE: Editor’s Message 139 eficiaries in a trust he prepared for a client, 6A third-person, other than the client, pay- EDITOR’S MESSAGE Ohio Trust Code Amendments 139 borrowed $13,000 from the same client without ing a client’s legal fee requires the attorney Robert M. Brucken, Esq. obtainingFour new the proposals client’s informedfrom the EPTPL consent, Section con- were approved by advising her of the inherent conflict of inter- Proposal: Authorizing “Estate The Attorney-Client Privilege:firmed theThree’s OSBA in writing, CouncilA Crowd? pursuant of Delegates to on Ohio May Rules 10. They of will provide the Planning” For A Ward By A est, failed to repay the loan as agreed, and Prof.nucleus Cond. of Rulethe next 1.7. biennial omnibus trust and estate bill, that will Guardian 141 By Nirakar “Nic” Thakur Esq. with regard to a different client, accepted at- be7Ohio introduced Rules early of Prof. next year,Cond. enacted Rule 1.7,late next Cmt year and effective Transferring Tangible Personal torney’s fees for a guardianship without obtain- [27].early in 2021. This issue of Probate Law Journal contains material Property By Beneficiary ing prior approval from the probate court. 1 on8Ohio all four Rules proposals, of Prof. giving Cond. you Rule a heads 1.14(a). up on the future omnibus Designation 144 Mitch McDeere, the young, idealist protagonist of “The Firm” plans his escape from a corrupt legal practice, while neverBy Richard H. Harris, Esq. From these facts in Shaw and in putting the bill.9Ohio The Rules proposals of Prof. confirm Cond. authority Rule 1.14[11]. to modify selection of future trustees, expand court powers of estate planning in guardianships, Asset Protection Opportunities client’s interests and protection first, the fol- 10Dayton Bar Assn. v. Parisi, 131 Ohio St. 2Expanded by the Repeal of Ohio forgetting that “[t]he attorney-client privilege is one of the oldest recognized privileges for confidential communications.” Revised Code Section 5805.06(B)(2) 147 lowing rules need to be followed: “Don’t” solicit 3dprovide 345, 2012-Ohio-879, creditor protection 965 N.E.2dfor lapsed 268 powers (2012). of withdrawal and clarify adjustment of the support allowance for cars selected by By Richard E. Davis, Esq. and any substantial gift from a client and “Don’t 11Dayton Bar Assn. v. Parisi, 131 Ohio St. Stephanie A. Lehota, Esq. surviving spouses. prepare an instrument on behalf of a client 3d at 347-348 (2012) citing Ohio Rules of Prof. EPTPL Section Proposes To Amend The attorney-client privilege provides the client with the power toCond. refuse Rule to 1.7(a) disclose, and citing and Ohio to prevent Rules of Prof.others from disclosing,Ohio Revised Code § 2106.13(A) 152 Also included in this issue is an article on a new proposal ap- giving the drafting attorney, their partner, as- Cond. Rule 1.14. 3 By James J. Lanham Esq. confidential communicationssociate, made paralegal, between law the clerk, attorney employee, and client ‘of in provedthe course by the EPTPLof seeking Section or Council rendering in April legal that willadvice. be before But thePresentment of Claims Against 12Dayton Bar Assn. v. Parisi, 131 Ohio St. Estates: A Practical Proposal For the next meeting of the OSBA Council of Delegates (not now counsel,’ ’’ or spouse, child, grandchild, parent, 3d at 347-348 (2012). Improvement Of R.C. 2117.06 After privilege generally only attaches to those communications between anscheduled attorney until and May a 2020),client. simplifying the law on presentment of Wilson v. Lawrence 153 grandparent, sibling, or other relative or indi- 13Disciplinary Counsel v. Ball, 67 Ohio St. claims as it was declared recently by our Supreme Court in Wilson By Elizabeth E. W. Weinewuth, Esq. vidual with whom the attorney maintains a 3d 401, 1993-Ohio-6, 618 N.E.2d 159 (1993), v. Lawrence, 150 Ohio St. 3d 368, 2017-Ohio-1410, 81 N.E.3d 1242 Revisiting OHIO’s Savings Statutes: close, familial relationship unless the recipient reinstatement granted, 69 Ohio St. 3d 1207, Trusts As S Corporation Owners 157 Who is the client? Is it only the individual that a lawyer has a written631(2017). N.E.2d or Itoral and636 agreement a (1994). second proposal to represent? also approved Or by could the Council it extendin toBy Edwin P. Morrow III, Esq. attorney is related to the client;17 “Don’t” loan April14See on Ohio electronic Rules wills, of see Prof. 29 PLJOCond. 56 Rule.5(c) (March/April 2019) for ma- Continued Attacks On Special the client’s spouse, neighbor,or advance or friend? the client Many funds lawyers other than have for been le- in situations where clients bring their trusted confidants andNeeds Trusts 158 andterial 1.5(e); on it, and willDisciplinary if approved by Counsel the Council v. Amad- of Delegates also become 18 By William J. Browning, Esq. and Keith loved ones to meetings, gitimatebut does case the expenses privilege and attach costs; toand all“Do” in the diorooma part and in of Wargo thethose future, situations? 2020-Ohio-141, omnibus bill. What 2020 about WL meetings where theA. Stevens, Esq. client sends their friend complyand/or withtrusted local confidant rules and to orderscommunicate of the directly354953 (Ohio with 2020). the retained lawyer? When does the attorney-Effectively Using Beneficiary 19 15Finally, also included in this issue is an article on a new proposal Designations On Retirement court. Mahoning Cty. Bar Assn. v. Bauer, 143 Accounts 161 approved by the EPTPL Section Council last year that was not ap- client privilege attach to these communications and when is the privilegeOhio St. waived 3d 519, by 2015-Ohio-3653, the presence 39of N.E.3da third-party? This articleBy J. Paul Fidler, Esq. proved on May 10 by the OSBA Council of Delegates but was Certainly, the requirements of the Ohio 1242 (2015). The Greatest Estate Tax Planning will examine best practicesRules to ofensure Professional attachment Conduct of arethe much attorney-client more returned privilege16Now disbarred to the in Section instances for for practicing further where consideration. under a client sus- identifies It would authorize an “agent”Idea That You Never Heard Of 170 By Alan S. Acker, Esq. to act on their behalf. expansive and comprehensive than the 8 pension.TOD designationsDisciplinary for tangible Counsel personal v. Shaw property., 138 PLJO will keep Ohioyou St. advised 3d 522, of further 2014-Ohio-1025, action on it. 8 N.E.3d 928 Case Summaries 177 practice tips contained, above. However, these (2014). Subject Index 179 tips cover many of the common issues which Legislative Scorecard 183 17See Ohio Rules of Prof. Cond. Rule 1.8(c). Nearly 150 years ago, thewe Supreme encounter Court in our of primary Ohio practiceheld that area “[i]t of is wellOHIO established TRUST that CODE the [attorney-client] AMENDMENTS privilege extends 18See Ohio Rules of Prof. Cond. Rule 1.8(e). legal ethics and professional responsibility as well to communications to or through an agent, as to those made directly19RobertSee Ohioto M. the Brucken, Rules attorney of Esq. Prof. by Cond. the client Rule 1.1. in person.” 4 Following that can help attorneys to maintain an ethical Retired Partner, Baker & Hostetler LLP this holding, in Shipley, practicethe Fifth and District avoid experiencingCourt of Appeals any ethical held thatTHE the ATTORNEY-CLIENT“presence of appellant’s brother did not operate as a inquiry. 5 waiver of appellant’s privileged communications.” The Court in PRIVILEGE:ShipleyMat #42488103 concluded THREE’S that the Aclient’s communications to his CROWD? 6 attorney were privilegedENDNOTES: and that the privilege was not waived by his brother’s presence for some of the communications. By Mark M. Mikhaiel, Esq. However, the Court in Shipley1See did Ohio not Rules address of Prof. communications Cond. Rule 1.1 and made by the third-party to the attorney, but merely whether the Comments Schneider Smeltz Spieth Bell LLP third-party’s presence waived the privilege. In 2016, the Third DistrictCleveland, Court Ohio of Appeals addressed this exact issue: whether 2Ohio Rules of Prof. Cond. Rule 1.1, Cmt communications between[6]. a third-party agent and an attorney are privileged.Mitch McDeere, the young, idealist protago- 1 3Ohio Rules of Prof. Cond. Rule 1.1, Cmt nist of “The Firm” plans his escape from a cor- [2]. rupt legal practice, while never forgetting that 4Ohio Rules of Prof. Cond. Rule 1.2(c). “[t]he attorney-client privilege is one of the Zimpfer v. Roach: A cautionary5Ohio Rules tale ofwhere Prof. Cond.a self-identified Rule 1.2, Cmt agentoldest was recognizednot, in fact, privileges held to for be confidential the client’s agent. In Zimpfer v. Roach, the[7]. Shelby County Probate Court, and, eventually,communications.” the Third2 District Court of Appeals, attempted to determine whether the agent,K 2020 who Thomson was Reuters more involved in litigation strategy than the named parties, could161 qualify as a client for purposes of attaching the attorney-client privilege. In Zimpfer, the plaintiffs—Blake Zimpfer and Jody Keith—filed a will contest alleging that: (1) the will failed to comply with the formal requirements of a will; (2) the decedent lacked testamentary capacity to make a will; and (3) the will was a product of undue influence. The plaintiffs were out of state, in the Navy and away at college respectively, and neither of the plaintiffs were readily available for participation in litigation strategy or preparation discussions. As a result, Dr. Kreg Huffer, the plaintiffs’ uncle, served as the conduit between the plaintiffs and their attorneys. Plaintiffs’ counsel advised defense counsel that Dr. Huffer had assumed the role of agent and representative for the plaintiffs in the will contest action. As part of his responsibilities as agent, Dr. Huffer attended a mediation in lieu of the named plaintiffs.

As the litigation proceeded, the defense issued a subpoena to Dr. Huffer seeking all communication with plaintiffs’ counsel. Accordingly, Dr. Huffer and plaintiffs filed a motion to quash the subpoena based on attorney-client privilege and work product doctrine. In support of the motion to quash, plaintiffs and Dr. Huffer argued that Dr. Huffer was the “agent” of the plaintiffs pursuant to R.C. 2317.021(A), and therefore, his communications with counsel were protected. In support of this assertion, Dr. Huffer executed an affidavit whereby he stated that he is the uncle of the plaintiffs and that he had formally “assumed the role of representative and agent for [plaintiffs] for purposes of this litigation.” The defendants opposed the motion to quash citing Snyder v. Fleetwood RV, Inc., 303 F.R.D. 502 (S.D. Ohio 2014) for the proposition that communications in which the “agent” acts as a consultant with the attorney, rather than a conveyor of client communications, are not afforded privilege, and that whether Dr. Huffer is, in fact, the agent of the plaintiffs is a legal conclusion, thus his affirmative representation in the affidavit is not dispositive. Plaintiffs disputed these assertions in their reply brief. However, the trial court held that communication between Dr. Huffer and plaintiffs’ counsel was discoverable as it was “not subject to any privilege or work product exception” and ordered Dr. Huffer to produce his communication with plaintiffs’ counsel.

Dr. Huffer and plaintiffs filed an appeal at the Third District. The Third District affirmed the trial court order and held that there was “no evidence from which one could conclude that [plaintiffs] designated, appointed, or otherwise requested Dr. Huffer to act as their agent and representative for purposes of this litigation.” 7 In other words, the Third District took issue with the fact that the actual clients (i.e., the plaintiffs) did not formally authorize Dr. Huffer to speak on their behalf with their counsel. In addition, the Third District frowned upon the fact that the plaintiffs did not seek an “evidentiary hearing during which they could have presented additional evidence supporting the existence of an attorney-client relationship between Dr. Huffer and [plaintiffs’] counsel.” 8 Simply put, the Third District desired to see evidence of the existence of the agency relationship between Dr. Huffer and plaintiffs, suggesting that if such evidence had been presented, the Court may have sustained the claim of attorney-client privilege.

Ohio has a broad definition of who qualifies as a “client.” R.C. 2317.021(A) defines “client” as:

“[A] person, firm, partnership, corporation, or other association that, directly or through any representative, consults an attorney for the purpose of retaining the attorney or securing legal service or advice from the attorney in the attorney’s professional capacity, or consults an attorney employee for legal service or advice, and who communicates, either directly or through an agent, employee, or other representative, with such attorney; and includes an incompetent person whose guardian so consults the attorney in behalf of the incompetent person.”

The statute protects communications between an attorney and client “directly or through a representative,” and communications “directly or through an agent, employee or other representative.” In other words, on occasion, attorney-client privilege may attach where an individual is acting on behalf of the client to communicate with the attorney. In case there was any doubt as to the definition of “agent,” in Biddle v. Warren Gen. Hosp., the Supreme Court of Ohio held that “the ‘agent’ to whom R.C. 2317.021 refers is someone who communicates to the attorney on behalf of the client, that is, someone other than the attorney.” 9

Best practices for including a third-party agent in sensitive communications. What can attorneys do to ensure that communication with a client’s agent or representative is protected and encompassed under R.C. 2317.021(A)? Based on the result in Zimpfer, it would be prudent to have the actual client that engaged the attorney to affirmatively indicate that said individual is their agent for purposes of the attorney-client relationship and that communications with said individual are to remain privileged from third parties. In my own practice, in situations where clients would like their

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 2 The Attorney-Client Privilege: Three’s A Crowd?, 30 No. 4 Ohio Prob. L.J. NL 8 spouse, adult child, business advisor, or trusted confidant to be included in conversations and to have the authority to relay information to me, I instruct the clients to sign off on the following letter:

Please accept this letter as my authorization that _____ may act as my agent with respect to [insert the scope of the engagement]. It is my intention that any communications that your office has with _____ will remain privileged. To the extent your office is unable to contact me directly, ______has the authority to transmit and receive communications regarding ______on my behalf, all of which will be protected under the attorney-client privilege.

In that “the [attorney-client] privilege is founded on the premise that confidences 10 shared in the attorney-client relationship are to remain confidential,” 11 attorneys should inform both the client and the third-party agent that communications unrelated to the representation and otherwise not intended to remain confidential are discoverable.

The agency designation can always be revoked by the client. Though the client and third-party agent may initially have a common interest (i.e. the drafting of a trust or employment agreement), it is not uncommon that a conflict may occur between the client and third-party agent. One example would be an adult child who assisted the elderly parent with engaging and communicating with counsel to execute a financial or health care power of attorney, only for that child to later dispute that the parent had the mental capacity to execute the POA. In those situations, unlike concurrent representation conflicts, there is no bar to the attorney continuing to represent the parent.

In sum, at your introductory meeting with the client, explain to each client that in order to protect from discovery communications which are intended to be privileged, each person in the meeting is bound by attorney-client privilege. And to ensure that your communications with third parties acting on behalf of the client retain the attorney-client privilege, get the client’s wish to that effect memorialized in writing before you proceed to communicate with the third-party agent.

Footnotes a0 Schneider Smeltz Spieth Bell LLP Cleveland, Ohio 1 THE FIRM (Paramount Pictures 1993). 2 Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 127 Ohio St. 3d 161, 165, 2010- Ohio-4469, ???16, 937 N.E.2d 533, 537, 71 A.L.R.6th 717 (2010). 3 State ex rel. Thomas v. Ohio State Univ., 71 Ohio St. 3d 245, 1994-Ohio-261, 643 N.E.2d 126, 96 Ed. Law Rep. 237 (1994). 4 Bowers v. State, 29 Ohio St. 542, 546, 1876 WL 123 (1876). 5 State v. Shipley, 94 Ohio App. 3d 771, 776, 641 N.E.2d 822, 825 (5th Dist. Licking County 1994). 6 In State v. Whitaker, 1998 WL 704348 (Ohio Ct. App. 12th Dist. Warren County 1998), the Twelfth District interpreted the Bowers decision more narrowly, declining to treat a mother as her son’s agent for purposes of confidentiality when the son was not a minor.

7 Zimpfer v. Roach, 2016-Ohio-5176, ¶ 31, 2016 WL 4080692, at *5 (Ohio Ct. App. 3d Dist. Shelby County 2016). 8 Zimpfer v. Roach, 2016-Ohio-5176, ¶ 33, 2016 WL 4080692, at *5 (Ohio Ct. App. 3d Dist. Shelby County 2016). 9 Biddle v. Warren Gen. Hosp., 86 Ohio St. 3d 395, 1999-Ohio-115, 715 N.E.2d 518, 526 (1999). 10 When determining what communications are protected by attorney-client privilege, the following must be present: (1) [w]here legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his insistence permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection is waived. Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St. 3d 638, 660, 1994- Ohio-324, 635 N.E.2d 331, 35 A.L.R.5th 841 (1994). 11 Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St. 3d 638, 660, 1994-Ohio-324, 635 N.E.2d 331, 35 A.L.R.5th 841 (1994).

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