Tuesday, April 21, 2009

Ohio Supreme Court Sustains Claim Of Privilege

The web page of the Ohio Supreme Court reports a ruling from the court:

The Supreme Court of Ohio ruled today that an investigatory report prepared by a private law firm on behalf of a public agency is covered by attorney-client privilege and is not subject to mandatory disclosure under the state’s Public Records Act.

The Court’s 7-0 per curiam decision denied a writ of mandamus that was sought by the Toledo Blade newspaper to force disclosure of an investigative report prepared by the Spengler Nathanson law firm on behalf the Toledo-Lucas County Port Authority. The port authority’s board of directors retained the law firm to review and analyze records in order to identify potential legal repercussions of an alleged improper personal relationship between the president of the port authority, James Hartung, and Kathy Teigland, a contract lobbyist paid by the port authority and a consortium of other northwest Ohio governmental entities.

In July 2008, the mayor of Toledo, a consortium member, informed the port authority that Hartung had been engaged in an extramarital affair with Teigland and that Hartung may have improperly funneled money to the lobbyist and used his influence to her advantage. The port authority contracted with attorney Teresa Grigsby of the Spengler Nathanson firm to investigate the factual and legal issues concerning the mayor’s allegations. The port authority considered it essential that Grigsby, its long-time outside legal counsel, conduct the investigation to identify the pertinent factual and legal issues.

Spengler Nathanson, through attorney Grigsby and other attorneys, reviewed and analyzed port authority records and prepared an investigative report. The attorneys distributed numbered copies of the investigative report in sealed envelopes to the members of the port authority’s board of directors during an executive session of a regularly scheduled meeting. The board members were informed that the report was confidential and could not be shown or disclosed to any third party. Following a subsequent special session, copies of the report were returned to the law firm. On Aug. 1, 2008, after the special meeting, the board voted unanimously to terminate Hartung’s employment with the port authority immediately and for cause. The port authority publicly announced that Hartung had been terminated because he had pursued an inappropriate relationship with a vendor to the consortium in violation of the port authority’s policies. 

On the day Hartung’s termination was announced, the Blade filed a public records request with the port authority seeking disclosure of the Spengler Nathanson report and all documents that were reviewed in connection with it. The port authority denied the request, asserting that the requested items were exempt from disclosure under an exception in the public records act for documents covered by attorney client privilege.  The Blade filed a second request.  The port authority ultimately made available to the Blade all of the responsive documents Spengler Nathanson had reviewed in preparing its report, but refused to provide the newspaper with a copy of the report itself.

The Blade filed an original action in the Supreme Court seeking a writ of mandamus to compel disclosure of the law firm’s report and all supporting documentation. The Blade’s complaint also sought statutory damages for unlawful refusal to disclose a public record and an award of its attorney fees.

In today’s decision, the Court denied the requested writ based on its findings that the investigative report was covered by attorney-client privilege, and that the Blade’s request for other documents was moot because the port authority had already provided copies of  all of the records the law firm had reviewed in preparing its report.

In rejecting the Blade’s argument that attorney-client privilege bars disclosure only of documents in which an attorney provides “legal advice” to a client, the Court cited language from several federal and state court decisions endorsing a much broader definition of the privilege.

“(M)ost courts that have expressly addressed the issue of whether an attorney’s factual investigations are covered by the attorney-client privilege have determined that such investigations may be privileged.  See, e.g., In re Allen (1997) ... and cases cited therein. For example, in Upjohn (Co. v. United States) (1991) the United States Supreme Court recognized that the ‘first step in the resolution of any legal problem is ascertaining the factual background and sifting through facts with an eye to the legally relevant.’  ‘[T]he Upjohn pronouncement hardly stands alone. Courts have consistently recognized that investigation may be an important part of an attorney’s legal services to a client.’ ... Notwithstanding the Blade’s argument to the contrary, ‘the privilege is not narrowly confined to the repetition of confidences that were supplied to the lawyer by the client. That cramped view of the attorney-client privilege is at odds with the underlying policy of encouraging open communication; it poses inordinate practical difficulties in making surgical separations so as not to risk revealing client confidences; and it denies that an attorney can have any role in fact-gathering incident to the rendition of legal advice and services.’”

In this case, the Court held, “(I)t is manifest that the factual investigation conducted by attorney Grigsby was incident to or related to any legal advice that the attorneys hired by the port authority would give concerning the mayor’s allegations of misconduct by the port authority president. More specifically, the attorney’s investigation required her to draw upon her legal training and experience as well as her knowledge of the law governing the port authority and its policies and personnel. ... Legal issues included interpretation of Hartung’s employment contract, an analysis of ethics law and criminal law, potential tort claims by Hartung and Teigland, and the construction of a confidentiality provision in the settlement agreement concerning a previous port authority investigation. Legal analysis related to the facts in the investigation is integrated throughout the report.”

“(B)ased on the persuasive weight of authority,” the Court concluded, “we hold that the port authority has established that the investigative report was related to attorney Grigsby’s rendition of legal services and is thus excepted from disclosure under the Public Records Act as material covered by the attorney-client privilege.” Because the Blade’s petition for mandamus was denied, the Court also overruled its claims for statutory damages and attorney fees.

The decision is linked here. (Mike Frisch)


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