Voluntary Client Testimony As A Privilege Waiver: Is Ohio's Law Caught In A Time Warp?

David B. Alden, Jones Day
Matthew P. Silversten, Jones Day

Abstract

Ohio’s attorney-client privilege statute, Ohio Rev. Code § 2317.02(A), has been interpreted to provide for a broad waiver of the attorney-client privilege whenever the client testifies voluntarily, including when the client’s testimony does not disclose the substance of the otherwise privileged communications. Finding a privilege waiver under these circumstances is virtually unique to Ohio. This article (1) traces the origins of this rule back to Ohio’s first code of civil procedure, which was enacted in 1853, (2) identifies the long-forgotten reasons that prompted its adoption; (3) analyzes decisions that have applied it from the mid-nineteenth century through today; (4) assesses whether it consistent with modern policy bases for the attorney-client privilege, concluding that it is not; and (5) proposes possible changes that would bring this aspect of Ohio law into line not only with the policy bases for the privilege, but with practitioners’ expectations and the law in other jurisdictions.