State ex rel. Leslie v. Ohio Housing Finance Agency

105 Ohio St. 3d 261
CourtOhio Supreme Court
DecidedApril 13, 2005
DocketNo. 2004-0105
StatusPublished
Cited by102 cases

This text of 105 Ohio St. 3d 261 (State ex rel. Leslie v. Ohio Housing Finance Agency) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Leslie v. Ohio Housing Finance Agency, 105 Ohio St. 3d 261 (Ohio 2005).

Opinion

O’Connor, J.

{¶ 1} In this case, we must decide whether the attorney-client privilege applies to state agencies and their in-house counsel when that counsel is not an Assistant Attorney General. After examining the scope and purpose of the attorney-client privilege, we conclude that the privilege applies to government clients and that notwithstanding various statutes cited in opposition, the privilege exists between a state agency and its in-house counsel even if that counsel is not an Assistant Attorney General.

{¶ 2} From August 2000 through February 2002, the Ohio Department of Development employed appellee and cross-appellant, attorney Mark A. Leslie, as its Chief of Compliance. In that capacity, Leslie’s duties included conducting certain ministerial functions for appellant and cross-appellee Ohio Housing Finance Agency in compliance with state law. Effective March 1, 2002, the Department of Development terminated Leslie’s employment.

{¶ 3} In October 2002, Leslie filed a complaint in the Court of Appeals for Franklin County naming appellants and cross-appellees Ohio Housing Finance [262]*262Agency, Chief Legal Counsel for the Department of Development, and the board members and other officials of the Ohio Housing Finance Agency as respondents. Leslie also named the State Treasurer, State Auditor, and two Ohio Department of Commerce officials as respondents. Leslie alleged that appellants and other respondents had violated certain laws. For example, Leslie claimed that the Ohio Housing Finance Agency had disbursed unclaimed funds in the form of loans that were not authorized by R.C. Chapter 175. Leslie requested a writ of mandamus to compel appellants and other respondents to cease the alleged illegal activities and to comply with the applicable law. Leslie further requested that the State Auditor perform audits to ensure compliance.

{¶ 4} On December 10, 2002, appellants and other respondents moved to dismiss Leslie’s complaint. The State Auditor attached a 2001 audit to his dismissal motion. The court of appeals treated the auditor’s motion as one for summary judgment and set times for Leslie to respond to the motions.

{¶ 5} On December 30, 2002, Leslie replied to the dismissal motions. His reply contained two lengthy endnotes describing various documents and explaining his discharge. On January 14, 2003, Leslie replied to the auditor’s motion for summary judgment. He attached various documents, including several that disclosed legal advice from in-house counsel to Ohio Housing Finance Agency staff.

{¶ 6} On January 15, 2003, the court of appeals magistrate recommended granting the motions of appellants and other respondents and dismissing Leslie’s mandamus claim. On January 16, 2003, the magistrate denied the auditor’s summary-judgment motion as moot.

{¶ 7} On January 27, 2003, appellants, Ohio Housing Finance Agency, its staff, its board, and the Chief Legal Counsel of the Department of Development, moved to strike the endnotes from Leslie’s December 30, 2002 reply to appellants’ motion to dismiss, seal those portions protected by attorney-client privilege, and obtain a protective order to prohibit Leslie’s disclosure of privileged records.

{¶ 8} On February 11, 2003, appellants filed a second motion to strike and seal and for a protective order. This motion related to Leslie’s affidavit and attachments to his January 14, 2003 reply to the auditor’s summary-judgment motion. Appellants claimed that the affidavit and certain attachments were protected by attorney-client privilege.

{¶ 9} On February 20, 2003, Leslie replied to the motions to strike and seal and for protective orders. Leslie again attached documents to his reply. Appellants moved to strike Leslie’s February 20, 2003 reply as untimely.

{¶ 10} On June 17, 2003, the court of appeals adopted the magistrate’s recommendation to dismiss Leslie’s mandamus claim but stayed the dismissal [263]*263until the magistrate ruled upon the pending motions. On August 28, 2003, the magistrate recommended that the court of appeals (1) grant appellants’ motion to strike the endnotes in Leslie’s December 30, 2002 reply, (2) deny appellants’ motion to seal and for a protective order on Leslie’s December 30, 2002 reply, (3) deny appellant’s motion to strike and seal and motion for a protective order on Leslie’s January 14, 2003 reply, (4) grant appellants’ motion to strike the attachments to Leslie’s February 20, 2003 reply, and (5) deny appellants’ motion to strike Leslie’s February 20, 2003 response as untimely. The magistrate applied the court of appeals’ precedent in State ex rel. Olander v. French (July 16, 1996), Franklin App. No. 96APD04-501, 1996 WL 403802, which held that the attorney-client privilege does not exist between a state agency and its in-house counsel unless the attorney is a member of the Attorney General’s office.

{¶ 11} Appellants objected to the magistrate’s decision. On December 9, 2003, the court of appeals overruled the objections and adopted the magistrate’s decision. Nevertheless, two of the three court of appeals’ judges “reluctantly” concurred “because Olander has not been overruled and remains the law in this district.” These judges believed that Olander “was wrongly decided.”

{¶ 12} On January 16, 2004, appellants filed their notice of appeal, and on January 20, 2004, Leslie cross-appealed. The cause is now before this court upon an appeal and cross-appeal as of right.

{¶ 13} On July 14, 2004, we granted the parties’ requests for oral argument. State ex rel. Leslie v. Ohio Hous. Fin. Agency, 102 Ohio St.3d 1528, 2004-Ohio-3580, 811 N.E.2d 1148. On January 11, 2005, we heard oral argument on this appeal and cross-appeal.

Appeal: Attorney-Client Privilege

{¶ 14} Appellants assert that the court of appeals erred in applying State ex rel. Olander v. French (July 16, 1996), Franklin App. No. 96APD04-501, 1996 WL 403802, in which the court of appeals held that the “attorney-client privilege does not exist between members of a given state agency or department except the Office of the Attorney General.” Appellants claim that eight of the attachments to Leslie’s January 14, 2003 reply to the auditor’s motion for summary judgment and one of Leslie’s attachments to his February 20, 2003 reply to appellants’ motions to strike and seal and for protective orders should have been stricken from the record and sealed based on attorney-client privilege.

{¶ 15} Leslie counters that the attorney-client privilege does not apply to in-house counsel of state agencies and that the court of appeals properly applied its Olander precedent to exempt the challenged records from the privilege.

[264]*264{¶ 16} For the following reasons, we find that rejecting Leslie’s contentions and the court of appeals’ Olander decision is consistent with the weight of precedent and markedly advances the purpose of the attorney-client privilege.

Attorney-Client Privilege: Purpose and Elements

{¶ 17} “The privilege of a witness, person, state or political subdivision thereof shall be governed by statute enacted by the General Assembly or by principles of common law as interpreted by the courts of this state in the light of reason and experience.” Evid.R. 501.

{¶ 18} In Ohio, the attorney-client privilege is governed by statute, R.C. 2317.02(A), and in cases that are not addressed in R.C. 2317.02(A), by common law.

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Cite This Page — Counsel Stack

Bluebook (online)
105 Ohio St. 3d 261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-leslie-v-ohio-housing-finance-agency-ohio-2005.