Thursday, April 23, 2009

Attorney-Client privilege in Ohio public records law

Investigatory reports prepared by law firms on behalf of public agencies are attorney-client privilege and not subject to mandatory disclosure under the state's public records act, the Ohio Supreme Court held Tuesday.
[ Opinion ]

"ORC §149.43(A)(1)(v)," part of Ohio public records law, "excepts 'records the release of which is prohibited by state or federal law' from the definition of 'public record,'" the Court said. Citing State ex rel.Besser v. Ohio State Univ., it went on to say, "the attorney-client privilege, which covers records of communication between attorneys and their government clients pertaining to the attorneys' legal advice, is a state law prohibiting release of these records."

"Attorney-client privilege 'does not require a communication to contain purely legal analysis or advice to be privileged,'" it continued, citing the U.S. 5th. Circuit’s case, Dunn v. State Farm Fire & Casualty (1991). "If a communication between a lawyer & client would facilitate the rendition of legal services or advice, it is privileged."

'Abandonment' of Ohio state highway easements

Exclusive authority to abandon or vacate portions of a state highway in Ohio, lies with the Department of Transportation; a court local court of common pleas does not have jurisdiction in deciding whether a state highway easement has been abandoned the Ohio Supreme Court held lastTuesday. [ Case ]

Plaintiffs in the case had argued that under Ohio common law an otherwise unused portion of a highway easement acquired in perpetuity by the state in 1959, was abandoned & vacated because of its non-use and operation of law, title to the tract therefore reverting back to the feeholder.

The Court, however, said, citing decisions made in Haynes v. Jones (1915) and W. Park Shopping Cntr. v. Masheter (1966), that, "not only will adverse possession not lie against the state, (but) nor will an action to quiet title."

Instead, it held its decision in Bigler v. York Township, which explored the means by which a township could abandon township roads, was dispositive, even though the current instance dealt with state highways. In Bigler the Court had said, "if this court were to hold that an action could be brought in a court of common pleas to quiet title to a township road on the grounds of abandonment, we would directly undermine the discretion which the General Assembly expressly granted the boards of county commissioners in ORC 553.042" on the abandonment of township roads.

"Pursuant to ORC §5501.31," the Court here said, "the director of public transportation has 'general supervision of all roads comprising the state highway system.' As part of that general supervision, §5511.01 and §5511.07 establish a specific process for the director to abandon or vacate highway property interests."

"…. ORC §5553.042 applies to abandonment of a township road; §5529.01 applies to abandonment of a public highway outside of a municipal corporation, and we find that §5511.01 and 5511.07 express the General Assembly's intent to prohibit common-law claims for abandonment of an easement within a municipal corporation on which a public highway was built."

Tuesday, April 21, 2009

Amendments to late Ohio attorney registration rules of court

The Ohio Supreme Court announced the adoption of amendments to its rules on attorney registration and registration fees Monday.

The biggest change was the shortening of the amount of time an attorney on active or corporate status has, after missing his, or her, bi-annual registration deadline, to file their late paperwork and fees before being suspended, from 90 days to 60 days.

Court’s announcement