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 of EPTPL 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.