Weekly Legislative Report: OSBA honors legacy of Dr. King


April 5, 2018

In recognition of the 50th anniversary of the assassination of the Reverend Dr. Martin Luther King on April 4, 1968, OSBA President Randall Comer issued the following statement: 

"...As an association of attorneys, jurists and students who have dedicated our lives to the law, we at the OSBA regard Dr. King's​ legacy as one that urges us to strive to increase access to justice, fight for the preservation of the rule of law and engage in civil discourse when laws must be changed.

"Like Dr. King, the OSBA believes that the law should affirm humanity and our reflection today reminds us that it was King who taught us, in his 'Letter from Birmingham Jail,' that 'injustice anywhere is a threat to justice everywhere.' So now, 50 years later, at a time when extremism seems to echo globally, we look to Dr. King's example and proudly reaffirm our commitment to being 'extremists … for the extension of justice.'" 

We urge all attorneys and advocates for justice to take the time to revisit Dr. King's "Letter from Birmingham Jail," or other writings in honor of the historic commemoration. 

Welcome the Honorable Kathleen Bartlett to the 7th District Court of Appeals 

On Monday, April 9, Judge Kathleen J. Bartlett of North Jackson (Mahoning County), an OSBA member and Governor Kasich's choice to replace Supreme Court Justice Mary DeGenaro on the 7th District Court of Appeals, officially took office. The 7th District includes Mahoning, Columbiana, Belmont, Carroll, Harrison, Jefferson, Monroe and Noble counties. 
Bartlett most recently served as magistrate for the Columbiana County Court of Common Pleas, where she presided over domestic relations cases. She also served as magistrate for the village of Leetonia Mayor’s Court, presiding over cases charged under the Ohio Municipal Code and the village of Leetonia Local Ordinances. She received her bachelor’s degree from Miami University and her law degree from Cleveland State University. Bartlett must run in this November to retain the seat for the full term.  
Congratulations and welcome to Judge Bartlett! 

Estate Planning, Trust & Probate Law Section Seeks Legislative Clarification Re: Privilege and Fiduciaries

It's week two in our five-week effort to bring you up to speed on the seven proposals coming before the OSBA Council of Delegates on April 27 at OSBA headquarters. If approved, the proposals will become priority legislation for the Association.  
Last week, we covered two proposals by the Corporation Law Committee dealing with nonprofit law. This week, we're reviewing a proposal by the Estate Planning, Trust & Probate Law Section (EPTPL) that would make it clear that a communication between a lawyer and a client acting as a fiduciary is privileged and protected from disclosure to third parties to whom the fiduciary owes fiduciary duties to the same extent as if the client were not acting as a fiduciary. 
EPTPL explains that under the "fiduciary exception" to the attorney-client privilege, a fiduciary who obtains legal advice related to the execution of fiduciary obligations is precluded from asserting the attorney-client privilege against beneficiaries of the trust or estates. If the fiduciary exception applies, the communications between the fiduciary and his lawyer would be discoverable by the beneficiaries and perhaps obtainable even outside of the discovery process.  
In 2007, Ohio added Section 5815.16 to the Ohio Revised Code providing that, absent an express agreement to the contrary, an attorney who performs legal services for a fiduciary, by reason of the attorney performing those legal services for the fiduciary, has no duty or obligation in contract, tort, or otherwise to any third party to whom the fiduciary owes fiduciary obligations. The statute defines "fiduciary" as a trustee under an express trust or an executor or administrator of a decedent's estate. Following enactment of this section, many believed that it confirmed that the fiduciary exception to the attorney-client privilege was not applicable in Ohio.  
In 2011, the U.S. Supreme Court held that the fiduciary exception to the attorney-client privilege did not apply to the general trust relationship between the United States and the Indian tribes. U.S. Jicarilla Apache Nation, 131 S. Ct. 2313, 2331 (2011). As a result of the Jicarilla decision, renewed attention was given to the issue of the attorney-client privilege between fiduciaries and their counsel. After Jicarilla, the EPTPL Section Council considered the need for legislative clarification/confirmation of Ohio law on this subject but determined that the existing provisions adequately addressed the issue of what duties might be owed to a third party by an attorney representing a fiduciary.  
However, a recent decision from the 8th District Court of Appeals in Dueck v. Clifton Club Co., 2017-Ohio-7161, has required the Section to rethink its position on the adequacy of Section 5815.16. In Dueck, the Court applied the fiduciary exception to the attorney-client privilege without even referencing Section 5815.16 and held that trustees' refusal to provide privileged communications between the trustees and their attorneys concerning trust administration was a breach of the trustee's fiduciary duties.  
The EPTPL's recommendation to the Council of Delegates is that Section 5815.16 be amended to add language that makes it clear that Ohio does not recognize the fiduciary exception to the attorney client privilege. This would not be a change in Ohio law, but simply a confirmation of current law deemed necessary in light of sweeping language in the Jicarilla decision.  
As always, we thank EPTPL for their hard work and diligence. Now it will be up to Council of Delegates members as to whether the OSBA will take this proposal to the Ohio General Assembly for adoption.

Week Ahead 

Speaking of the Ohio General Assembly, legislators return from Spring/Easter break next week, with voting sessions scheduled in both chambers on April 11. The House also has an "if needed" session day slated for April 12.

In addition, believe it or not, absentee voting begins for the May 8 Primary Election on April 10. The deadline to register to vote or update your voting address is April 9. You can do all of that by visiting www.MyOhioVote.com.

Tracking OSBA Legislation    

Remember, you can always track bills we are watching and OSBA priority legislation via the Legislative section at www.OhioBar.org.




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