Court may compel deceased woman's lawyer to testify.

An attorney must answer a grand jury's questions about her deceased client, the Ohio Supreme Court has ruled, up holding a state law allowing a surviving spouse to waive the deceased's attorney-client privilege. (State v. Doe, 803 N.E.2d 777 (Ohio 2004).) Prosecutors believe attorney Beth Goldstein Lewis's client may have given her information relevant to a nine-year-old's 1999 disappearance.

Lewis refused to answer 18 of 20 grand jury queries regarding her communications with her client Jan Franks, who died in December 2001. Montgomery County prosecutor Mathias Heck said information from police investigations and the missing girl's family led his office to believe that Lewis had pertinent information. According to news reports, Franks might have been riding in a van that allegedly struck the girl on a roadside and might have told Lewis where the body is buried.

Police obtained a written statement from Shane Franks, Jan's husband, waiving her attorney-client privilege regarding her communications with Lewis. The waiver authorizes the trial court to compel Lewis to testify. After her continued refusal, the court found her in contempt and ordered jail time until she complied.

An appeals court stayed that judgment pending the appeal. Heck said he told Lewis's attorneys that if she did not have relevant information, they could stipulate to that, and the issue would not be pursued further. But Lewis did not accept the offer.

She contended that because the statute says an attorney "may" testify if the privilege is waived, she may choose whether to testify or refuse. The state countered that the statute uses "may" instead of "shall" because the attorney's testimony may not be needed or admissible for other reasons; it does not give the attorney discretion.

The high court unanimously agreed with the state. "Ultimately ... determination of whether an attorney must testify in judicial proceedings as to confidences received during representation of a deceased client lies with the court--not the attorney," wrote Justice C.J. Moyer for the majority.

The court also rejected Lewis's argument that she was ethically barred from testifying. "While an attorney should preserve the confidences and secrets of his client, that obligation 'does not preclude a lawyer from revealing information ... when required by law,'" Moyer wrote, quoting Ohio Code of Professional Responsibility [section]EC 4-2. (Emphasis added by the court.)

"At the very least, this ruling means that no lawyer (civil, criminal, or otherwise) will be able to promise a client that his or her secrets will remain secret after death," said attorney Richard Magnus of Cincinnati. He filed an amicus brief in the case on behalf of the National Association of Criminal Defense Lawyers, the Ohio Association of Criminal Defense Lawyers, and two local criminal defense organizations.

He noted that "it appears that there is now a lower standard in Ohio for waiver of privilege by a widow or widower than by the client." The state's Code of Professional Responsibility requires "full disclosure" for a client to waive the privilege, but Shane Franks "signed his affidavit waiving the confidentiality with no information regarding what he was waiving, and the trial judge did not allow Lewis or her attorneys to challenge whether the waiver was done knowingly, intelligently, and voluntarily," Magnus said.

Prosecutor Heck said the decision does not compromise attorney-client privilege: "That privilege is still being upheld, but in this case it has been waived according to law." He also noted that testimony in secret grand-jury proceedings does not hinder the client's privacy interests. He said the ruling is important because it "upholds the principle that no one is above the law." Other states, including California, have similar laws allowing for termination or waiver of the privilege after a client's death, he added.

At press time, Lewis had asked the court to reconsider its ruling and had not answered the grand jury's questions, and the court had not imposed sanctions against her. In a concurring opinion, Justice Lundberg Stratton noted that because this is a case of first impression in Ohio, Lewis should not face sanctions for her prior refusals to testify.