In response to the newspaper’s public records request, the authority provided copies of all documents reviewed by the attorney in the course of her investigation, but did not produce a copy of the report itself, claiming attorney-client privilege. According to the Court, “R.C. 149.43(A)(1)(v) excepts ‘[r]ecords the release of which is prohibited by state or federal law” from the definition of “public record.’ ‘The attorney-client privilege, which covers records of communications between attorneys and their government clients pertaining to the attorneys’ legal advice, is a state law prohibiting release of these records.’”
The Court rejected the newspaper’s argument “that the factual portions of the investigative report are not covered by the attorney-client privilege, because they do not constitute legal advice.” The common law attorney-client privilege “protects against any dissemination of information obtained in the confidential relationship. . . . In fact, most 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. . . . For example, in Upjohn v. United States , 449 U.S. 383, 390-39, 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.” The Court concluded that “the relevant question is not whether [an attorney] was retained to conduct an investigation, but rather, whether this investigation was ‘related to the rendition of legal services. . . . The attorney-client privilege “does not require the communication to contain purely legal analysis or advice to be privileged. Instead, if a communication between a lawyer and client would facilitate the rendition of legal services or advice, the communication is privileged.”
In short, “[t]he [attorney-client] privilege applies when legal advice of any kind is sought from the legal advisor in that capacity and the client’s confidential communication relates to that purpose.”
Before the attorney-client privilege applies to communications relating to investigative services, the client for whom the investigation was conducted must show that other legal advice or assistance was sought and that the investigation conducted was integral to that assistance.” After applying this test to the facts here, it 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. Both the port authority and its outside counsel knew that the investigation was replete with various legal issues and consequences that would be better resolved by the port authority employing its long-time attorney to conduct the investigation and prepare the report. 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 facts in the investigation is integrated throughout the report.
Insomniacs can read the full opinion at http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1767.pdf
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
