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11th District decides Portage County attorney-client privilege dispute
TRACEY BLAIR
Legal News Reporter
Published: January 17, 2020
A married couple claimed a Portage County trial court committed prejudicial error by ordering them to disclose will, trust and estate planning documents that are protected by the attorney-client privilege.
The 11th District Court of Appeals recently reversed the lower court’s judgment in part.
Appellants Bridget and Walter Edwards Sr. appealed from the March 22, 2019 judgment entry ordering them to produce documents following a motion to compel discovery.
Appellees Molly and Walter Edwards Jr. sued the appellants for defamation, intentional infliction of emotional distress, undue influence, making false police reports, intentional interference with expectancy of inheritance, frivolous conduct and abuse of process.
Walter Sr. intervened in the matter, and filed counterclaims for identity fraud and/or civil theft, breach of fiduciary duty, common law fraud, unjust enrichment, declaratory judgment and injunctive relief. Walter Sr.’s counterclaim contends that in March 2017, he removed Walter Jr. as co-executor and as co-trustee but did not, at that time, disinherit Walter Jr.
The trial court determined that appellants must produce the will, trust and estate planning documents because they are directly related to the litigation of the claims in a civil suit the appellees filed against the appellants. The trial court also stated that no potential privilege had been asserted by appellants with regard to these documents; or, in the alternative, that any potential privilege had been waived.
The appellate panel found that Walter Sr.’s will, trust and estate planning documents are protected by the common law attorney-client privilege, which applies where legal advice of any kind is sought from a professional legal adviser. The protection includes communications made in confidence by the client - unless the protection is waived.
Eleventh District Court of Appeals Judge Timothy P. Cannon said in his opinion that the appellees’ argument that “will and trust documents are not in and of themselves privileged” improperly relies on Briggs v. Briggs, a 1991 appeal in a divorce litigation before the 9th District Court of Appeals.
In Briggs, the trial court was required to consider statutory factors when ordering an award of spousal support.
“In the present matter, none of the rationale behind the holding in Briggs is applicable,” Cannon wrote. “The contents of the trust in Briggs were necessary to allow the trial court to make a fully-informed determination as to an award of spousal support. Contrary to appellees’ argument, in Briggs the 9th District specifically observed that a trust is subject to attorney-client privilege when stating, ‘it is not necessary to breach the privilege to discover the terms of the trust.’ We agree, and we also hold that wills and estate planning documents are subject to attorney-client privilege.”
Next, the panel examined whether the appellants waived that privilege.
“Appellees assert that statements made in the answer and counterclaims amount to a waiver of the attorney-client privilege. We agree. Any such privilege is waived to the extent there are factual allegations concerning the contents of the will, trust and estate planning documents,” Cannon noted. “However, these documents should not be produced in a manner that would allow them to become public record in the discovery process.
“Counsel for appellees agreed at oral argument that only information germane to the current claims and counterclaims is being sought, despite the broad requests made of appellants. Counsel conceded that a protective order limiting discovery to prevent the disclosure of personal, extraneous terms contained in Walter Sr.’s will, trust, and estate planning documents would be appropriate and acceptable.”
The panel determined that appellants’ sole assignment of error is without merit with regard to information germane to appellants’ answer and counterclaims and has merit with regard to any other confidential or personal information not referenced in appellants’ counterclaim.
The matter was remanded to the trial court, which shall conduct an in-camera inspection of the documents to determine what is relevant and instruct the parties to enter into an agreed protective order limiting disclosure only to information within the will, trust and estate planning documents directly pertaining to the allegations in the counterclaim.
Appellate judges Cynthia Westcott Rice and Mary Jane Trapp concurred. The case is cited Edwards v. Edwards, 2019-Ohio-5413.