Ohio Supreme Court Recognizes Common Law 'Self Protection' Exception to Statutory Attorney-Client Privilege

The Ohio Supreme Court this morning held that the state recognizes a common law "self protection exception" to attorney-client privileges that permits an attorney to testify concerning attorney-client communications where such testimony is necessary to establish a claim for legal fees on behalf of the attorney or to allow an attorney to defend against a charge of malpractice or other wrongdoing in litigation between the attorney and a client.

"The Court also found that attorney work product, including mental impressions, theories, and legal conclusions are subject to discovery when a showing of good cause is made, if the information sought is directly a matter at issue in the case, the need for the information is compelling, and the evidence cannot be obtained elsewhere..." ( See Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., Slip Opinion No. 2010-Ohio-4469 )

The issue here was whether the common-law self-protection exception to the attorney-client privilege, permitting an attorney to reveal attorney-client communications when necessary to establish a claim or defense on the behalf of the attorney, applies as an exception to ORC 2317.02(A), which provides that "An attorney (shall not testify ) concerning communications made to the attorney by a client in that relation, or the attorney’s advice to a client, except that the attorney may testify by express consent of the client…" [ Note revision to statute effective 9/13/2010 ]

Justice Terrence O’Donnell wrote with regard to the "self-protection exception" that the concept & issue, in fact "dates back over 150 years to its articulation by New York Supreme Court Justice Selden in Rochester City Bank v. Suydam, Sage & Co. (N.Y.Sup.Ct.1851). There, Justice Selden wrote, '[w]here the attorney or counsel has an interest in the facts communicated to him, and when their disclosure becomes necessary to protect his own personal rights, he must of necessity and in reason be exempted from the obligation of secrecy [sic].' (emphasis added in part.)

"Since that time," O'Donnell continued, "this exception has become firmly rooted in American jurisprudence. The Supreme Court of the United States recognized it in Hunt v. Blackburn (1888) … and courts and commentators have accepted the self-protection exception as black-letter law defining which communications are subject to the attorney-client privilege… Ohio's case law recognizes that the attorney-client privilege does not prevent an attorney from testifying to the correctness, amount, and value of the legal services rendered to the client in an action calling those fees into question," as well, as seen in In re Butler's Estate (1940).