A copy of a legal-opinion letter to a county auditor must be turned over to a political challenger because the auditor had disclosed its contents, the Ohio Supreme Court ruled today.

In a unanimous per curiam opinion, the Supreme Court ruled Clermont County Auditor Linda Fraley no longer can claim the 2004 opinion letter from the county prosecutor regarding the hiring of her stepson is protected by attorney-client privilege.

Christopher Hicks, who unsuccessfully challenged Fraley in the 2018 Republican primary for the auditor’s office, has been seeking to examine the contents of the letter since before the primary.

Hicks lodged a criminal complaint against Fraley in 2018, claiming that the employment of Fraley’s stepson in the auditor’s office violated Ohio law, and sought to unseal the contents of the letter during the legal proceedings. After he was denied access by a trial court, he submitted a public records request to the auditor’s office for the letter, which was denied in 2020. He responded by seeking a writ of mandamus from the Supreme Court, which he received from the Court today along with an award of court costs. The Court denied his request for damages and attorney fees.

Letter Sought During Criminal Complaint
Two months before the 2018 primary, Hicks filed a private-citizen affidavit under R.C. 2935.09(D), asserting Fraley committed a crime by employing her stepson in the auditor’s office.

Because the county prosecutor represents the elected county officials, a special prosecutor was appointed to investigate Hicks’ complaint against Fraley. Through her private attorney, Fraley presented the special prosecutor with a 2004 opinion letter to Fraley from the county prosecutor discussing the hiring of her stepson.

At a Clermont County Municipal Court hearing on the matter, the special prosecutor was allowed to file the prosecutor’s letter under seal. The municipal court stated the document remained subject to attorney-client privilege if anyone was asked to reveal its contents. The trial court then dismissed the charges against Fraley.

Political Opponent Seeks Record
Fraley defeated Hicks in the primary and retained her office. Hicks then submitted a public-records request to Fraley for the letter. The county prosecutor, acting as Fraley’s attorney, replied that the letter was exempt from disclosure under a provision of the Ohio Public Records Act.

Hicks sought an order from the Supreme Court in September 2020 to release the document.

A provision of the public records law – R.C. 149.43(A)(1)(vi) – exempts from disclosure records whose release is prohibited by state or federal law. Fraley maintained that state law provides that attorney-client privilege covers communication between an attorney and the government clients. She asserted that the letter was still covered by attorney-client privilege and denied any claim that she had waived her privilege.

Supreme Court Analyzes Release of Record in Court Proceeding
Hicks argued that Fraley voluntarily waived the privilege on multiple occasions by either disclosing the entire opinion to third parties or by revealing its content publicly.

The Court’s opinion noted the parties dispute the presentation of the opinion letter to the special prosecutor. Hicks argued that giving it to the special prosecutor destroyed the attorney-client privilege protection. Fraley maintained that the special prosecutor is not a third party because the “special prosecutor was acting in the place of the elected prosecutor, and as such had access” to the letter.

The Court disagreed. The special prosecutor was assigned because the county prosecutor had to recuse himself due to the conflict of interest he faced as the legal adviser to all county officers. The special prosecutor did not step into the role as legal adviser to the county officials, but only the limited role as the adversary to a person facing criminal charges, the opinion stated.

“Accordingly, when Fraley voluntarily disclosed the opinion letter to the special prosecutor, she disclosed it to the adverse party outside of her attorney-client relationship with the county prosecutor,” the opinion stated. “And the voluntary disclosure of a privileged communication waives the privilege.”

Fraley also contended that she did not waive the privilege because the special prosecutor would have inevitably obtained the letter, reasoning that “the special prosecutor had access to all of the county prosecutor’s files as a result of his appointment.”

The Supreme Court countered there is no legal authority to support the argument that a special prosecutor appointed for a specific purpose has broad access to any and all privileged communications between the county prosecutor and the county officers whom the special prosecutor advises. The opposite is true, the Court stated, and the prosecutor was not obligated to release a letter written as the legal representative of the auditor.

“The Clermont County prosecutor was under a continuing duty to maintain the letter’s confidentiality, and therefore, he could not have provided the special prosecutor access to it without Fraley’s informed consent,” the opinion stated.

2020-1121. State ex rel. Hicks v. Fraley, Slip Opinion No. 2021-Ohio-2724.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.