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Disarming the Self-Protection Exception in Attorney Malpractice Actions

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By: Zachary Pyers and Daniel Bey

January 11, 2016

Recently, the Ohio Ninth District Court of Appeals expanded the protection offered by the attorney-client privilege by decreasing the scope of the self-defense exception. Generally, despite the otherwise broad scope of discovery, confidential communications between attorney and client are not subject to disclosure.  The attorney-client privilege is recognized as serving a broader public interest in administrating justice by promoting "full and frank communication between attorneys and their clients."  The self-defense exception, however, allows an attorney to reveal confidential information to defend against a malpractice claim.

In Sandra Cook v. Sam R. Bradley, (Slip Opinion No. 2015-Ohio-5039), the Ohio Ninth District Court of Appeals ruled that in a legal malpractice action the self-defense exception to the attorney-client privilege does not allow discovery of communications from the underlying case between the plaintiff and their subsequently hired attorney.

In Cook, the Ninth District Court of Appeals examined the ability of an attorney facing a legal malpractice claim to use the self-protection exception to obtain confidential communication between the plaintiff and their subsequent counsel.  After completion of the underlying action, the first attorney, who was the malpractice defendant in Cook, issued subpoenas requesting the subsequent attorneys to produce their complete case files, including communications between the attorneys and the plaintiff.  The subsequent attorneys refused, citing the attorney-client privilege.  The first attorney then filed a motion requesting that the trial court compel production of the documents, claiming that the communications were discoverable under the self-protection exception because they were "essential to developing their defense against the legal malpractice claim."  The trial court, without a hearing, granted the motion.

On appeal, the Ninth District reversed the trial court, holding that the self-protection exception to the attorney-client privilege only applied to communications between the first attorney and the plaintiff that occurred during the course of the underlying action.  The Court noted that "[t]he self-defense exception is not a rule of discovery; rather, it is a rule of disclosure . . . designed to put the defending attorney on the same plane as other civil defendants, as well as the plaintiff."  Consequently, communications between the client and their subsequent attorneys would not fall within the self-defense exception.  It should be noted that a partial dissent by Judge Carr opined that the requested communications should be subject to in-camera review by the trial court "to '1) determine whether [they] . . . are relevant to determining liability, and 2) weigh the benefit of protecting the privilege against the difficulty of discovering the facts relevant to liability by other means.'"

The Cook decision is important for two reasons: (1) it strengthens the attorney-client privilege by ensuring that communications between the client and their subsequently hired attorney will remain confidential; and (2) it increases the difficulty of defending a legal malpractice action for the very same reason.  Advice, communications, and actions taken by subsequently hired attorneys can be vital to establishing whether the action or advice given by the malpractice defendant met or violated the duty of care in light of the surrounding circumstances. Consequently, when seeking documents or communications between the plaintiff and their subsequent counsel, the malpractice defendant should stress the difficulty of otherwise obtaining the information through other means. 

If you would like a copy of the Cook decision, or have any questions with respect to attorney malpractice or any other professional liability issue, please contact a member of the Professional Liability Practice Group.

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel. 

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