text:
    ASSOCIATION OF CLEVELAND FIREFIGHTERS, LOCAL 93 I.A.F.F., Plaintiff v. CITY OF CLEVELAND, et al., Defendants-Appellees
    [Appeal by Deberra Schroeder, et al., Appellants]
    No. 106472
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: May 24, 2018
   Timothy D. Smith, Karen Lefton, The Lefton Group, L.L.C., 3480 W. Market Street, Suite 304, Akron, Ohio 44333, ATTORNEYS FOR APPELLANTS.

Barbara Langhenry, Director of Law, City of Cleveland, William M. Menzalora, Chief Assistant Director of Law, 601 Lakeside Avenue, Room 106, Cleveland, Ohio 44114 Jon M. Dileno, Jessi L. Ziska, Zashin & Rich Co., L.P.A., 950 Main Avenue, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEES, For City of Cleveland, Frank Jackson, and City of Cleveland Civil Commission.

Bradric T. Bryan, Goodwin & Bryan, L.L.P., 22050 Mastick Road, Fairview Park, Ohio 44126, ATTORNEYS FOR APPELLEES, For Angelo Calvillo, Captain Christopher Posante, and Kenneth Drost.

Scott C. Essad, 721 Boardman-Poland Road, Suite 201, Boardman, Ohio 44512, ATTORNEYS FOR APPELLEES, For John Coughlin, et al.

Edward Richard Stege, Stege & Michelson Co., L.P.A., 30799 Pinetree Road, Suite 302, Cleveland, Ohio 44124, ATTORNEYS FOR APPELLEES, For Battalion Chief Anthony P. Luke.

Joseph W. Diemert, Mark V. Guidetti, Thomas M. Hanculak, Diemert & Associates Co., L.P.A., 1360 S.O.M. Center Road, Cleveland, Ohio 44124, For Association of Cleveland Firefighters, Local 93 I.A.F.F.

BEFORE: Boyle, J., Stewart, P.J., and Celebrezze, J.

JOURNAL ENTRY AND OPINION

MARY J. BOYLE, J.:

{¶ 1} Eight fire captains of the Cleveland Fire Department have been seeking to intervene in a case filed over four years ago by the firefighters' union against the city of Cleveland. The eight fire captains contend that they were eligible for promotion to the ranks of battalion chief and assistant chief within the fire department but were deprived of the opportunity to take a competitive promotional examination designed to test for merit and fitness as required by the Ohio Constitution, Ohio Revised Code, Cleveland City Charter, and Cleveland Civil Service Rules.

{¶ 2} These eight fire captains, the proposed intervenors and appellants in this case (hereinafter referred to as "appellants") appeal the trial court's denial of their motion to intervene. Specifically, the appellants wish to intervene in the lawsuit filed on March 20, 2014, by the Association of Cleveland Firefighters, Local 93 I.A.F.F. ("union" or "Local 93") against the city of Cleveland. In its complaint, the union seeks to stop the city from administering noncompetitive examinations for promotion to the positions of assistant chief and battalion chief.

{¶ 3} The appellants raise one assignment of error for our review, namely, that "[t]he trial court abused its discretion in denying [their] motion to intervene." We find no merit to their arguments and affirm the judgment of the trial court.

I. Procedural History and Factual Background

{¶ 4} The procedural history and factual background of this case is not in dispute and is largely compiled from the parties' briefs and from previous appeals filed with this court and the Ohio Supreme Court.

A. March 2014 Announcement

{¶ 5} On March 14, 2014, the city issued a "civil service announcement" that it would conduct a "noncompetitive examination" for the positions of assistant chief and battalion chief. The noncompetitive process used by the city consisted of the submission of a resume and an interview by a group of panelists. The application filing period was set from March 17, 2014 through March 22, 2014.

{¶ 6} This was the first time the city ever used noncompetitive testing to promote individuals in the fire department. Prior to this, the city used a competitive examination for promotions.

B. The Dismissal of the Union's Complaint and its Initial Appeal

{¶ 7} The trial court sua sponte raised the issue of subject matter jurisdiction. It held a hearing on the matter on April 17, 2014. Both the union and the city argued that the trial court had proper jurisdiction because the issue of noncompetitive exams was not addressed in their collective bargaining agreement. On April 25, 2014, the trial court issued a decision finding that it lacked jurisdiction to hear the matter in light of the union's failure to exhaust its remedies under the collective bargaining agreement. The court sua sponte dismissed the union's claims as a matter of law.

{¶ 8} The union appealed, and the city cross-appealed. See Assn. of Cleveland Firefighters, Local 93 I.A.F.F. v. Cleveland , 8th Dist. Cuyahoga, 2015-Ohio-1538, 31 N.E.3d 1285. Both parties argued the trial court erred when it dismissed the union's complaint for lack of subject matter jurisdiction. On April 23, 2015, this court reversed the trial court's decision and remanded the matter for the trial court to adjudicate the union's complaint and injunction motions. Id. at ¶ 24.

C. The City Promoted Six Fire Captains through the Noncompetitive Examination Process

{¶ 9} The union did not request a stay of execution pending the outcome of the appeal. Thus, while the matter was pending before this court, the city administered the noncompetitive promotional exam in December 2014. Through this noncompetitive examination, the city promoted six fire captains to fill the battalion-chief positions in the early months of 2015.

D. The Trial Court Grants the Union's Motion for Preliminary Injunction

{¶ 10} According to the city, additional vacancies arose for the positions of battalion chief and assistant chief in March and April 2015. But after this court reversed and remanded the union's first appeal (which was on April 23, 2015), the trial court granted the union's preliminary injunction in August 2015, prohibiting the city from promoting any other fire captains through the noncompetitive examination process.

{¶ 11} In its order granting the union's preliminary injunction, the trial court found that the city's administrative decision to change to noncompetitive testing was not supported by the evidence and there was a substantial likelihood that the union would prevail on the merits of its declaratory judgment. The trial court further found that if the injunction was not granted, the potential of irreparable harm to the union was "quite real" because "[t]he decisions for which battalion and assistant chiefs are responsible are often life and death decisions."

E. The Union's Amended Complaint

{¶ 12} In September 2015, the union moved for leave to amend its complaint, which the trial court granted in December 2015. In its amended complaint, the union again sought a declaratory judgment, a preliminary injunction, and permanent injunction and also sought a petition for a writ of mandamus. The union maintained that because the March 14, 2014 announcement violated the Ohio Constitution, both state and local law, and the city's charter it was entitled to

a declaratory judgment that all vacancies in the promoted ranks of Division of Fire created since the expiration of the most recent certified civil service eligibility lists, as well as any such vacancies which have yet to be created in the promoted ranks, must be filled by a competitive examination process in compliance with applicable law.

{¶ 13} The union also sought preliminary and permanent injunctions prohibiting the administration of noncompetitive promotional exams for any promoted rank in the fire department and sought a writ of mandamus "as a result of the city's failure to comply with its clear legal duties with regard to promotional examinations within the Division of Fire[.]" The union sought a writ directing the city to immediately administer competitive exams, certify eligibility lists to restore the promotional cycle, and fill all promotional vacancies created since the expiration of the most recent certified civil service eligibility lists with firefighters from the newly administered competitive exams.

F. Motions to Intervene

{¶ 14} Numerous firefighters moved to intervene in the case. The intervenors and proposed intervenors can be divided into three groups. The first group includes four firefighters who moved to intervene in the case because they asserted that they completed the noncompetitive examination and wished to preserve their spots on the promotion list generated by that process. These firefighters argued that their interests were in direct conflict with the union's interests. The city did not oppose these motions because they were aligned with the city's position. The trial court granted these firefighters' motions to intervene.

{¶ 15} The second group of intervenors includes five firefighters who were actually promoted as a result of the noncompetitive testing process. The city did not oppose these motions either because, again, their positions were directly aligned with the city's position.

{¶ 16} The third group of "proposed intervenors" includes 12 fire captains who wished to intervene in the case to challenge the noncompetitive examination process. Eight of these original 12 fire captains are the appellants in this appeal (4 of the original 12 have since retired). These 12 fire captains filed their motion to intervene on September 8, 2015. They argued that they were denied the opportunity to compete fairly for the position of battalion chief through a competitive examination test for merit and fitness, which they contend is required by law. The city opposed these fire captains' motion to intervene.

{¶ 17} As of November 12, 2015, two months after they filed their motion, the trial court had not yet ruled on the proposed intervenors' motion to intervene, so they withdrew it. Subsequently, they filed a writ of mandamus in the Ohio Supreme Court. With respect to their reason for withdrawing their motion to intervene, appellants contend the following in their brief to this court:

[T]he trial court had granted a preliminary injunction and temporary restraining order, determining that the union had a high likelihood of success on the merits. That led the attorneys-including representatives for the city, the union, all nine intervenors and the eight captains [the proposed-intervenors appellants]-to determine that mediation might be fruitful. They selected a mediator and set November 19 as the date for mediation. The trial court set a case management conference for October 29, at which time it "was informed that the parties have agreed on a private mediator and have set a date for that mediation: 11/19/2015." (Oct. 29, 2015, judgment entry.) Counsel for the eight captains had asked to participate in that telephonic CMC and was told she would be conferenced in "as long as no one objected." She was not conferenced in; the city had objected.
The parties-the union, the city and the nine intervenors who wanted to uphold their spots on the noncompetitive application list-prepared for mediation. There would be no seat at the table for the eight captains. Their motion to intervene had been pending for more than two months. The six intervenors who filed later had already been allowed in. Mediation was imminent. The eight captains made the calculated, strategic decision to stop the train until they could get on, determining that there should be no resolution without their interests represented.

{¶ 18} Appellants assert that their filing the writ of mandamus in the Ohio Supreme Court "had the desired impact of halting the mediation." The trial court issued a judgment entry on November 23, 2015, stating

The court has been informed that the private mediation that was scheduled in this matter did not go forward and has been indefinitely suspended. The parties are hereby advised that this matter will proceed under the case management schedule established by this court.

G. 12 (8 Remaining) Fire Captains' Writ of Mandamus

{¶ 19} The day after the 12 fire captains withdrew their motion to intervene, they filed a complaint for a writ of mandamus with the Ohio Supreme Court in State ex rel. Schroeder v. Cleveland , 150 Ohio St.3d 135, 2016-Ohio-8105, 80 N.E.3d 417. The 12 fire captains (relators in the Schroeder case) asserted that they had a clear legal right to require that the city

choose battalion chiefs and assistant chiefs from among the three highest scores in a competitive promotional exam, that they have no adequate remedy in the ordinary course of the law, and that [the city] has no lawful reason for refusing to offer a competitive exam or for filling the positions with firefighters who do not rank among the top three scores in a competitive exam.

Id. at ¶ 11.

{¶ 20} They requested that the Ohio Supreme Court order the city

to immediately offer a competitive promotional exam to all firefighters who were eligible to sit for such a test when the noncompetitive examination process was announced in March 2014, fill all battalion-chief and assistant-chief positions available since March 2014 with firefighters who rank in the top three of that competitive test, make those promotions retroactive to the date each would have been effective if [the city] had complied with the law, and provide back pay and benefits to the firefighters promoted under the new competitive process.

Id.

{¶ 21} The Supreme Court found that the relators challenged the noncompetitive examination process on the same grounds as the union did in its amended complaint and sought the immediate return of the competitive examination process. Id. at ¶ 21. The Supreme Court dismissed the relators' writ, finding that they had an adequate remedy in the ordinary course of law by way of intervention. Id. at ¶ 24. The Supreme Court further stated that although the trial court would not rule on the 12 fire captains' motion to intervene and had "scheduled mediation without having allowed their intervention," the 12 fire captains should have filed a writ of procedendo "to force the trial court to grant or deny their motion to intervene." Id. at ¶ 23, 25.

{¶ 22} The Supreme Court issued its decision on the 12 fire captains' writ on December 14, 2016. The appellants (8 remaining of the original 12 fire captains) now assert that when the Supreme Court dismissed their writ, they could not move to intervene again in the case because it had been pending on appeal for the second time at that point, as explained in the next section.

H. The Union's and the City's Motions for Summary Judgment and the Union's Second Appeal

{¶ 23} Meanwhile, in March 2016, the union and the city each filed motions for summary judgment. The union opposed the city's motion. The city, however, did not file a response in opposition to the union's motion for summary judgment. In September 2016, the trial court dismissed the action for a second time, finding that there was no justiciable issue or controversy because the positions had already been filled through the noncompetitive examination process.

{¶ 24} The union appealed this decision. See Assn. of Cleveland Firefighters, Local 93 I.A.F.F. v. Cleveland , 8th Dist. Cuyahoga No. 105033, 2017-Ohio-6887, 2017 WL 3084812 ("second appeal"). On July 20, 2017, this court found that the trial court erred when it dismissed the union's complaint, noting that "[o]n its face, the record appears to support [the union's] position that the city's decision to use a noncompetitive examination appears to be a violation of the Ohio Constitution, state and local law, and the city's Charter." Id. at ¶ 37. We reversed the trial court's decision and remanded the case, instructing the trial court to rule on the merits of the parties' summary judgment motions. Id.

I. Appellants File a Second Motion to Intervene

{¶ 25} On July 28, 2017, about a week after this court reversed the trial court's decision in the second appeal, the appellants again moved to intervene in the case, which the trial court denied on October 23, 2017.

{¶ 26} In its judgment denying the motion to intervene, the trial court stated that it "initially" denied the appellants' motion because they failed to attach a pleading as required by Civ.R. 24(C). The trial court then stated:

Second, the court finds the motion to intervene is not timely. The present case was filed more than three years before the intervenors' most recent motion to intervene was filed, and one and a half years before the prior motion to intervene, which was voluntarily withdrawn on 11/12/2015. The court has conducted lengthy hearings and the parties have briefed multiple motions for summary judgment. Furthermore, the Eighth District's latest opinion in this matter instructed the court to consider the merits of plaintiff's motion for summary judgment. * * * Consistent with the Eighth District's opinion, this court is ready to proceed in adhering to the Eighth District's directive. The time for new pleadings and claims has clearly passed. Furthermore, the proposed intervenors have not simply re-filed their prior motion to intervene. In their prior motion to intervene, filed on 09/08/2015, the intervenors sought to participate as defendants, and with that motion, an answer was properly submitted. However, the motion was withdrawn on 11/12/2015 and the proposed intervenors now seek to intervene as plaintiffs. In light of these circumstances, the motion to intervene is not timely and must be denied.

{¶ 27} It is from this judgment that the appellants appeal, contending that the trial court erred in doing so. The trial court agreed to stay the proceedings pending appeal.

II. Law and Analysis

A. Standard of Review for Motion to Intervene

{¶ 28} The appellants contend that the trial court abused its discretion when it denied their motion to intervene as a matter of right under Civ.R. 24(A)(2).

{¶ 29} To intervene in a case as a matter of right, the movant must file a timely application and show, pursuant to Civ.R. 24(A)(2), that: (1) the movant "claims an interest relating to the property or transaction that is the subject of the action"; (2) "disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest"; and that (3) the applicant's interest is not "adequately represented by existing parties." Civ.R. 24(C) also requires that the motion "be accompanied by a pleading, as defined in Civ.R. 7(A), setting forth the claim or defense for which intervention is sought." Generally, courts construe Civ.R. 24(A) liberally to allow intervention. State ex rel. LTV Steel Co. v. Gwin , 64 Ohio St.3d 245, 247, 594 N.E.2d 616 (1992).

{¶ 30} We review a trial court's decision on a motion to intervene for abuse of discretion. State ex rel. N.G. v. Cuyahoga Cty. Court of Common Pleas , 147 Ohio St.3d 432, 2016-Ohio-1519, 67 N.E.3d 728, ¶ 21, citing State ex rel. Merrill v. Ohio Dept. of Natural Resources , 130 Ohio St.3d 30, 2011-Ohio-4612, 955 N.E.2d 935.

B. "Profound Miscarriage of Justice"

{¶ 31} The appellants first argue that the trial court abused its discretion in denying their motion to intervene because "a profound miscarriage of justice" will occur without them in the case because it would "result in litigation progressing without the fundamental rights of interested and necessary parties being represented."

{¶ 32} The appellants rely heavily on State ex rel. N.G. in support of their argument. At the outset, we find that State ex rel. N.G. is not analogous to the facts in the present case and does not help the appellants. The procedural history of State ex rel. N.G. is complicated and not relevant here, but the case involved a custody dispute between a mother and father where the father was attempting to prevent the mother from intervening in a prohibition case that would affect the custody of their child. Id. at ¶ 1-3. Suffice it to say, State ex rel. N.G. was an extraordinary case involving a mother's "fundamental constitutional right to make decisions concerning the care, custody, and control of her children." Id. at ¶ 22, citing Troxel v. Granville , 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).

{¶ 33} The appellants appear to argue that in State ex rel. N.G., the Ohio Supreme Court set forth a new standard for determining abuse of discretion when reviewing a trial court's decision on a motion to intervene. They claim in their brief that the Supreme Court

concluded that discretion is abused where (1) the prejudice to the original parties due to the proposed intervention in minimal; (2) the respondent judge and court certainly were not prejudiced by the proposed intervention, since they have no personal stake in the outcome other than an additional case on the docket; and (3) the original parties can hardly claim prejudice where they should have reasonably expected the proposed intervenor to intervene at some point to protect her interests.

{¶ 34} In actuality, however, the Supreme Court was merely discussing the specific factors in that case to determine whether the mother's motion to intervene was timely. The Supreme Court analyzed the timeliness factors as follows:

[Father] argues that under Civ.R. 24(A), [mother] did not file her motion to intervene "timely." In State ex rel. First New Shiloh Baptist Church v. Meagher , 82 Ohio St.3d 501, [1998-Ohio-192], 696 N.E.2d 1058 (1998), this court laid out five factors for determining whether a motion to intervene is timely:
"(1) the point to which the suit had progressed; (2) the purpose for which intervention is sought; (3) the length of time preceding the application during which the proposed intervenor knew or reasonably should have known of his interest in the case; (4) the prejudice to the original parties due to the proposed intervenor's failure after he knew or reasonably should have known of his interest in the case to apply promptly for intervention; and (5) the existence of unusual circumstances militating against or in favor of intervention."
Id. at 503 [696 N.E.2d 1058], quoting Triax Co. v. TRW, Inc. , 724 F.2d 1224, 1228 (6th Cir.1984).
The factors as applied to this case do not lead to a clear result. On the one hand, the purpose of intervention was to protect [mother's] right to the care and custody of her children and to present evidence about the false basis for Virginia's jurisdiction to the court; these are obviously important purposes. The prejudice to the original parties due to the proposed intervention is minimal. The respondent judge and court certainly were not prejudiced by the proposed intervention, since they have no personal stake in the outcome other than an additional case on the docket. [Father] can hardly claim prejudice when he filed a prohibition case as part of lengthy litigation regarding the custody of the children and did not name [mother], the children's mother, as a party. He should have reasonably expected [mother] to intervene at some point to protect her interests.
On the other hand, the case had already progressed to judgment, and as [father] points out, courts rarely allow intervention after judgment. First New Shiloh , 82 Ohio St.3d at 503-504, 696 N.E.2d 1058. The parties disagree as to when S.F. or her attorneys became aware of the prohibition case. [Mother] claims that neither she nor her counsel was notified of the writ proceedings, and the writ was captioned using only [father's] initials, which concealed [father's] identity. [Father] counters that [mother] or her counsel were aware of the prohibition action in plenty of time for her to have intervened before the court decided the case. Evidence in the record on this issue is contradictory, but [mother] and her Ohio counsel assert under oath that they had no knowledge of the prohibition action until after the writ was issued. Virginia counsel asserts under oath that he was never given a copy of the prohibition pleading.

State ex rel. N.G. , 147 Ohio St.3d 432, 2016-Ohio-1519, 67 N.E.3d 728, at ¶ 23-25.

{¶ 35} The Supreme Court went on to hold that not only should the trial court have allowed mother to intervene as a matter of right, but that father should have joined mother as a necessary party under Civ.R. 19(A) as well. Id. at ¶ 26, 28.

{¶ 36} After reviewing State ex rel. N.G. , we conclude that it did not change the standard for reviewing courts when determining whether a trial court abused its discretion. We further find that State ex rel. N.G. has no applicability to the facts in the present case.

C. Civ.R. 24(C)

{¶ 37} The trial court first denied the appellants' motion to intervene because they failed to attach the required pleading that is mandated by Civ.R. 24(C). This statute provides, "[t]he motion and any supporting memorandum shall state the grounds for intervention and shall be accompanied by a pleading, as defined in Civ.R. 7(A), setting forth the claim or defense for which intervention is sought."

{¶ 38} "Motions to intervene are regularly denied (and/or the denial upheld) due to the failure to attach a pleading as required by Civ.R. 24(C)." Yemma v. Reed , 7th Dist. Mahoning, 2017-Ohio-1015, 86 N.E.3d 980, ¶ 46 (upholding trial court's denial of motion to intervene in a tax foreclosure action where intervenor who ultimately sought relief from the foreclosure decree failed to attach a pleading to his motion to intervene); see also State ex rel. Sawicki v. Court of Common Pleas of Lucas Cty. , 121 Ohio St.3d 507, 2009-Ohio-1523, 905 N.E.2d 1192, ¶ 21-22 (affirming denial of the motion to intervene on the ground that the intervenor failed to comply with Civ.R. 24(C) even though trial court did not rely on this rule provision when denying the motion); State ex rel. Wilkinson v. Reed , 99 Ohio St.3d 106, 2003-Ohio-2506, 789 N.E.2d 203, ¶ 12, fn. 1 (denied motion to intervene because proposed intervenors failed to comply with Civ.R. 24(C) ); State ex rel. Polo v. Cuyahoga Cty. Bd. of Elections, 74 Ohio St.3d 143, 144, 656 N.E.2d 1277 (1995) (denied motion to intervene because proposed intervenors failed to comply with Civ.R. 24(C) ).

{¶ 39} The appellants contend that "within hours" of receiving the trial court's judgment entry, they filed their "accompanying pleading" pursuant to " Civ.R. 60(B)(1)." This motion was captioned, "Motion to Correct the Record." The body of the motion was only one paragraph, stating that under Civ.R. 60(B)(1), the appellants were submitting the required pleading "which was inadvertently omitted from their motion to intervene filed on July 28, 2017." The appellants, however, did not include any law or argument in their "Motion to Correct the Record" regarding the requirements of Civ.R. 60(B) or GTE Automatic Elec., Inc. v. ARC Industries, Inc. , 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), the seminal case setting forth the Civ.R. 60(B) standard.

{¶ 40} The appellants assert that although they inadvertently forgot to attach their pleading to their second motion to intervene, they did file "the required pleading with [their] initial motion to intervene in September 2015." While this is true, the appellants originally sought to intervene as party defendants and filed an answer with their motion. But in their second motion to intervene filed on July 28, 2017, they sought to intervene as party plaintiffs. In their motion to correct the record with the required pleading (which they did not file until November 1, 2017), they attached their proposed complaint. The appellants maintain that although their proposed intervenor status and pleading has changed, the substance of their first and second motions to intervene was the same. Again, while that may be true, their proposed pleadings are significantly different. Thus, we find the appellants' argument-that because they filed the required pleading with their original motion, their inadvertent failure to file one with their new motion is less prejudicial-to be wholly without merit.

{¶ 41} We further note that the trial court has not yet ruled on the appellants' " Civ.R. 60(B)(1) motion." As we indicated, however, this was not even a proper Civ.R. 60(B) motion because the appellants failed to include any law or argument in their motion. Even if they had, the appellants concede that the filing of their motion to correct the record "had no effect, of course, because in addition to denying the [appellants'] intervention due to the inadvertently omitted pleading," the trial court also found it to be untimely.

D. Timeliness

{¶ 42} The appellants next argue that the trial court abused its discretion when it denied their motion to intervene due to untimeliness. "The timeliness of a motion to intervene pursuant to Civ.R. 24(A) is a matter within the sound discretion of the trial judge." Univ. Hosps. of Cleveland, Inc. v. Lynch , 96 Ohio St.3d 118, 2002-Ohio-3748, 772 N.E.2d 105, ¶ 47. We set forth the timeliness factors in the previous section, but they bear repeating here:

(1) the point to which the suit had progressed; (2) the purpose for which intervention is sought; (3) the length of time preceding the application during which the proposed intervenor knew or reasonably should have known of his interest in the case; (4) the prejudice to the original parties due to the proposed intervenor's failure after he knew or reasonably should have known of his interest in the case to apply promptly for intervention; and (5) the existence of unusual circumstances militating against or in favor of intervention.

State ex rel. N.G. , 147 Ohio St.3d 432, 2016-Ohio-1519, 67 N.E.3d 728, at ¶ 23, quoting Triax Co. , 724 F.2d 1224.

{¶ 43} When looking at the timeliness factors in this case, we agree with the appellants that their motion was not as untimely as the trial court indicated. The trial court found that their second motion (the one at issue) was filed more than three years after the case had begun and that their first motion, which they voluntarily withdrew in November 2015, had been filed nearly one and a-half years after the case had been filed. But due to the union filing two appeals in the case, it had been pending on appeal for a significant portion of that time (nearly 20 months).

{¶ 44} Nevertheless, when looking at all of the factors, what actually occurred, and the trial court's reasoning, we simply cannot say that the trial court's decision was "so palpably and grossly violative of fact or logic that it evidences not the exercise of will but the perversity of will, not the exercise of judgment but the defiance of judgment, not the exercise of reason but instead passion or bias." Nakoff v. Fairview Gen. Hosp. , 75 Ohio St.3d 254, 256, 662 N.E.2d 1 (1996) (setting forth what it takes to find an abuse of discretion).

{¶ 45} The appellants contend that it was an abuse of discretion for the trial court to grant the other firefighter-intervenors' motions to intervene in the summer and fall of 2015, but ignore theirs. The city, however, did not oppose the other firefighters' motions to intervene and, thus, there was no reason to delay granting them. But once the city opposed the appellants' motion to intervene, the trial court had to consider opposing motions before it determined which way it would rule. Before the trial court did so, however, the appellants voluntarily withdrew their motion to file their writ of mandamus in the Ohio Supreme Court. At that point, their motion had been pending for just over two months.

{¶ 46} The appellants further argue that "[i]t was an abuse of discretion for the trial court to expect the eight captains to sit idly while their union, the city, and the nine intervenors who wanted to protect their spots on the noncompetitive promotion list mediated this dispute," and to "proceed with the underlying litigation well into the fall, setting a case management conference for the parties while continuing to ignore the eight captains' [motion to intervene]." But again, when looking at what actually occurred, their motion had only been pending for just over two months when they "made a calculated, strategic decision" to voluntarily withdraw it.

{¶ 47} The appellants filed their first motion to intervene on September 8, 2015. According to the appellants, their attorney, along with the attorneys for the city, the union, and all nine intervenors (who wanted to protect their spots on the noncompetitive promotion list) agreed to mediate the dispute. They informed the trial court that they hired a private mediator and set the date for mediation on November 19, 2015. The trial court then held a telephonic case management conference on October 29, 2015, excluding the appellants from the conference because the city opposed their participation. The trial court issued a judgment that same day, stating that it "was informed that the parties have agreed on a private mediator and have set a date for that mediation: 11/19/2015."

{¶ 48} The appellants maintain that they decided to file a writ of mandamus in the Ohio Supreme Court to halt the mediation occurring without them. They claim that their filing the writ "had the desired effect" of halting the mediation. The trial court issued a judgment entry on November 23, 2015, indicating as much. That judgment entry stated, "[t]he court has been informed that the private mediation that was scheduled in this matter did not go forward and has been indefinitely suspended. The parties are hereby advised that this matter will proceed under the case management schedule established by this court." While the appellants' writ of mandamus was pending in the Ohio Supreme Court, however, the union's case proceeded in the trial court without them.

{¶ 49} In denying the appellants' July 2017 motion to intervene, the trial court explained that it had held "lengthy hearings and the parties have briefed multiple motions for summary judgment." The trial court further noted that it was prepared to rule on the parties' multiple summary judgment motions as directed to do so by this court in the second appeal. See Local 93 , 8th Dist. Cuyahoga No. 105033, 2017-Ohio-6887, at ¶ 39.

{¶ 50} In its decision denying the appellants' motion to intervene, the trial court also found that the "time for new pleadings and claims has clearly passed." The trial court stated that

the proposed intervenors have not simply re-filed their prior motion to intervene. In their prior motion to intervene, filed on 09/08/2015, the intervenors sought to participate as defendants, and with that motion, an answer was properly submitted. However, the motion was withdrawn on 11/12/2015 and the proposed intervenors now seek to intervene as plaintiffs.

{¶ 51} After review, we simply cannot say that the trial court abused its discretion. If permitted to intervene in the case at this point, the trial court could not rule on the summary judgment motions as directed by this court and it would have to hold additional hearings. The defendants would have to respond to the appellants' complaint. The parties would likely have to file new summary judgment motions or at least respond to the appellants' motion for summary judgment.

{¶ 52} Simply put, after the appellants withdrew their first motion to intervene and filed their writ of mandamus in the Supreme Court, the case proceeded without them from November 2015 until September 2016, when the trial court dismissed the case. After the Supreme Court denied their writ in December 2016, the appellants could not move to intervene at that point because the case was pending on appeal for the second time. Although appellants assert that this fact-that the case was pending on appeal-mitigates their delay in filing their second motion to intervene, this still does not change the fact that they voluntarily withdrew their original motion to intervene in the first place.

{¶ 53} Thus, we find no abuse of discretion on the part of the trial court for denying appellants' motion to intervene due to untimeliness.

E. Interests Adequately Represented by Another Party

{¶ 54} Finally, the appellants strongly argue that their interests are not adequately represented by the union and, thus, under Civ.R. 24(A), they have a right to intervene in the case. They claim that they "are challenging the positions already filled" by the noncompetitive exam, but that the union is not. They cite to a footnote in this court's July 20, 2017 decision in support of this argument where we stated:

At appellate oral argument, both parties conceded that they were not challenging the positions already filled by the city's noncompetitive examination process. Moore [v. Agin ], 12 Ohio St.3d 173, 465 N.E.2d 1293 (1984).

Local 93 , 8th Dist. Cuyahoga No. 105033, 2017-Ohio-6887, ¶ 39, fn. 3.

{¶ 55} The city, however, maintains that despite what was said at oral argument in the second appeal, the union is seeking to fill all battalion chief and assistant chief vacancies with firefighters who take a competitive exam-including those six firefighters who were promoted through the noncompetitive procedures. We agree.

{¶ 56} Contrary to what the union said at oral argument in the last appeal and what the appellants now claim, the union's demands include (1) "declaring that all vacancies in the promoted ranks of [the fire department] created since the expiration of the most recent civil service eligibility list , as well as any such vacancies which have yet to be created in the promoted ranks, must be filled by a competitive examination process in compliance with applicable law," (2) declaring that the March 2014 bulletin "and any non-competitive promotional process administered pursuant thereto" were in violation of the Ohio Constitution, Ohio Revised Code, the city charter, and the city civil service rules, (3) a permanent injunction against the city prohibiting the city from administering a noncompetitive promotional exam and prohibiting the city from "effectuating any promotions" without first administering a competitive exam ascertaining the merit and fitness of the candidates, and (4) issue a writ of mandamus

to immediately administer competitive examinations, certify eligibility lists which would expire in July 2016, and make promotional appointments therefrom to fill (through the competitive promotional process) all vacancies created since the expiration of the last certified civil service eligibility list as well as all vacancies which are created during the life of the eligibility list certified through the competitive promotional process.

(Emphasis added.) Union's complaint at 19.

{¶ 57} The "last certified civil service eligibility list" expired at the end of 2013. Thus, the union's demands that "all vacancies created since the expiration of the last certified civil service eligibility list" be filled with firefighters who take a competitive exam means that the union wants past and future vacancies to be filled with firefighters who take a competitive exam. Stated another way, the union wants all vacancies since the end of 2013, which would include the positions occupied by the six firefighters who were promoted by the noncompetitive process, to be filled by the highest scores on a competitive exam. This is the exact relief the appellants seek in their complaint.

{¶ 58} Accordingly, we conclude that the appellants have not established they have a right to intervene in the action because the union adequately represents their interests. Civ.R. 24(A)(2).

{¶ 59} After finding no merit to any of appellants' arguments, we find that the trial court did not abuse its discretion when it denied their motion to intervene.

{¶ 60} The appellants' sole assignment of error is overruled.

{¶ 61} Judgment affirmed.

MELODY J. STEWART, P.J., and FRANK D. CELEBREZZE, JR., J., CONCUR

      On March 20, 2014, the same day the union filed its complaint, the trial court entered an order allowing the city to continue to accept applications through the city's set deadline.

      'The trial court incorrectly stated Civ.R. 26(C), but it is clear that it meant Civ.R. 24(C).

      In their motion, they argued that they had a right to intervene under Civ.R. 24(A) and, alternatively, that they should be permitted to intervene under Civ.R. 24(B). On appeal, however, they only argue that they had a right to intervene.


source: Caselaw Access Project

author: EILEEN A. GALLAGHER, A.J.:

license: Public Domain

text:
    Sean PALES, et al. Plaintiffs-Appellees v. Robert J. FEDOR, et al. Defendants-Appellants
    No. 106024
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: May 24, 2018
    Larry W. Zukerman, S. Michael Lear, Brian A. Murray, Adam M. Brown, Zukerman Daiker & Lear, Co., L.P.A., 3912 Prospect Avenue, Cleveland, Ohio 44115, Jason D. Winter, Winter Trimacco, Co., L.P.A., Ernst & Young Tower, 950 Main Avenue, Suite 1210, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLANTS
    Brian D. Spitz, The Spitz Law Firm, L.L.C., 25200 Chagrin Boulevard, Suite 200, Beachwood, Ohio 44122, Ian N. Friedman, Friedman & Nemecek, L.L.C., 1360 East 9th Street, Suite 650, Cleveland, Ohio 44114, ATTORNEYS FOR APPELLEES
    Robin Weaver, President Elect, Desiree Blankenship, General Counsel, Ohio State Bar Association, 1700 Lake Shore Drive, Columbus, Ohio 43204, Holly Marie Wilson, Reminger Co., L.P.A., 101 West Prospect Avenue, Suite 1400, Cleveland, Ohio 44115, Attorneys for the Ohio State Bar Association, AMICUS CURIAE
    BEFORE: E.A. Gallagher, A.J., McCormack, J., and Celebrezze, J.
    JOURNAL ENTRY AND OPINION
   EILEEN A. GALLAGHER, A.J.:

{¶ 1} Defendants-appellants Robert J. Fedor, Robert J. Fedor, Esq., L.L.C. and Michael T. Arnold (collectively, "appellants") appeal the trial court's order granting plaintiffs-appellees Sean and Allison Pales' (collectively, "appellees" or the "Paleses") motion to compel discovery and denying appellants' motion for a protective order. Appellants assert that the information and documents to be produced under the trial court's order-answers to interrogatories seeking the identities of certain of appellants' nonparty clients and bank statements from appellants' interest on lawyers trust account ("IOLTA") containing information regarding financial transactions involving certain of their nonparty clients-is protected from discovery by the attorney-client privilege. Finding some merit to the appeal, we affirm the trial court's decision in part, reverse it in part and remand the matter for further proceedings.

Factual and Procedural Background

{¶ 2} Attorneys Fedor and Arnold are tax attorneys who practice with the law firm Robert J. Fedor, Esq., L.L.C. (the "Fedor firm"). The Paleses retained appellants to represent them with respect to various tax matters before the Internal Revenue Service ("IRS") and other tax authorities. Appellants represented the Paleses through at least September 30, 2015.

The Paleses' Claims Against Appellants

{¶ 3} On September 1, 2016, appellees filed a complaint against appellants and John and Jane Does 1-10 ("individuals that were employed by the Firm that promoted, participated, and/or ratified the conspiracy and other conduct"), asserting claims of legal malpractice, breach of fiduciary duty, fraud, civil conspiracy, spoliation of evidence and violation of the Ohio Corrupt Practices Act. The Paleses alleged that appellants negligently or intentionally failed to adequately represent them by, among other things, failing to timely file the Paleses' tax returns, failing to advise the Paleses to make estimated quarterly tax payments, filing the Paleses' tax returns without "proper support," failing to claim a research and development credit on the Paleses' tax returns, failing to properly respond to IRS audit requests and mishandling the Paleses' appeal in the United States Tax Court. The Paleses further alleged that appellants intentionally billed them "amounts excessive to amount of time and rate," that these bills were submitted electronically and by U.S. mail (constituting telecommunications fraud and mail fraud) and that appellants had collected payment from the Paleses for this "fraudulently billed time." The Paleses also alleged that appellants had "engaged in similar corrupt acts with other clients" "[a]s will be further proven through discovery." The Paleses sought to recover compensatory damages, treble damages, punitive damages, their attorney fees and costs.

{¶ 4} On November 9, 2016, appellants filed a "partial answer" with respect to the Paleses' legal malpractice claim and a motion to dismiss appellees' claims of breach of fiduciary duty, fraud, civil conspiracy, spoliation of evidence and violation of the Ohio Corrupt Practices Act, arguing that these claims were subsumed into the legal malpractice claim and that fraud was not pled with particularity.

{¶ 5} The Paleses opposed the motion to dismiss. The trial court summarily denied appellants' motion to dismiss, and appellants filed an "amended/complete" answer to the Paleses' complaint, denying the material allegations of the complaint and asserting various affirmative defenses.

The Discovery Dispute

{¶ 6} The Paleses propounded an initial set of interrogatories and request for the production of documents with their complaint. In November 2016, appellants served their responses and objections to the Paleses' discovery requests. The parties filed a joint motion for a stipulated protective order, setting forth procedures for protecting the "confidential and sensitive business and personal information" the parties anticipated would be disclosed during discovery. The trial court granted the motion.

{¶ 7} Pursuant to the joint stipulated protective order, appellants produced redacted copies of bank statements from their IOLTA account from June 30, 2010 to August 31, 2015, and copies of checks and an account transaction listing relating to the Paleses. However, appellants refused to provide other requested documents and information, including the identities of their current and former nonparty clients and unredacted IOLTA records relating to financial transactions involving their current and former nonparty clients. On March 22, 2017, after informal efforts to resolve the discovery dispute failed, the Paleses filed a motion to compel discovery responses and for sanctions, seeking to compel appellants to "properly and completely respond to written discovery." Specifically at issue were appellants' objections and responses to the following discovery requests:

INTERROGATORY NO. 5
Identify all banking, savings, checking, investment or other similar accounts on which a Defendant is signatory from 2006 to the Present.
ANSWER: Objection: this interrogatory seeks irrelevant information not reasonably calculated to lead to the discovery of admissible evidence, is overly broad, unduly burdensome, and is designed solely to harass the defendants. This interrogatory also seeks private financial information unrelated to the instant litigation and information protected from compelled disclosure by the attorney client and work product privileges.
INTERROGATORY NO. 6
Identify all banking, savings, checking, investment or other similar accounts where Defendants deposited funds from the Paleses.
ANSWER: See response to Interrogatory No. 5. In further answering, the defendants deposited the Pales' [sic] funds into the firm IOLTA account.
INTERROGATORY NO. 7 Identify all clients of a Defendant that paid amounts owed for taxes into an account of a Defendant from 2006 to the Present.
ANSWER: Objection: this interrogatory seeks irrelevant information not reasonably calculated to lead to the discovery of admissible evidence, is overly broad, unduly burdensome, seeks private financial and tax information of third persons not parties to the instant litigation, and the requested information is protected from compelled disclosure by the attorney client and work product privileges. Furthermore, this Interrogatory is designed solely to harass the defendants.
INTERROGATORY NO. 8
Identify all clients of a Defendant who have been audited for tax years in which a Defendant prepared the tax returns from 2006 to the Present.
ANSWER: Objection: this interrogatory seeks irrelevant information not reasonably calculated to lead to the discovery of admissible evidence, is overly broad, unduly burdensome, seeks private financial and tax information of third persons not parties to the instant litigation, and the requested information is protected from compelled disclosure by the attorney client and work product privileges. Furthermore, this Interrogatory is designed solely to harass the defendants.
INTERROGATORY NO. 9
Identify all clients of a Defendant who have been an owner in business and did not pay estimated quarterly income taxes from 2006 to the Present.
ANSWER: Objection: this interrogatory seeks irrelevant information not reasonably calculated to lead to the discovery of admissible evidence, is overly broad, unduly burdensome, seeks private financial and tax information of third persons not parties to the instant litigation, and the requested information is protected from compelled disclosure by the attorney client and work product privileges. Furthermore, this Interrogatory is designed solely to harass the defendants.
INTERROGATORY NO. 10
Identify all clients of a Defendant who have received Research and Development Credit from 2006 to the Present.
ANSWER: Objection: this interrogatory seeks irrelevant information not reasonably calculated to lead to the discovery of admissible evidence, is overly broad, unduly burdensome, seeks private financial and tax information of third persons not parties to the instant litigation, and the requested information is protected from compelled disclosure by the attorney client and work product privileges. Furthermore, this Interrogatory is designed solely to harass the defendants.
INTERROGATORY NO. 11
Identify all clients of a Defendant who have not filed tax returns by the deadline or automatic extension date from 2006 to the Present.
ANSWER: Objection: this interrogatory seeks irrelevant information not reasonably calculated to lead to the discovery of admissible evidence, is overly broad, unduly burdensome, seeks private financial and tax information of third persons not parties to the instant litigation, and the requested information is protected from compelled disclosure by the attorney client and work product privileges. Furthermore, this Interrogatory is designed solely to harass the defendants.
PRODUCTION REQUEST NO. 2
Produce all bank, financial, lender, loan or mortgage agreements in which Fedor or the Firm to maintain a minimum balance [sic] in an account that have [sic] or were in place from 2006 to the Present.
ANSWER: Objection: this Request is inarticulate and the defendants are unable to decipher what information the plaintiffs' [sic] are requesting. To the extent this Request seeks information regarding personal or firm financial information unrelated to this litigation, the Interrogatory [sic] seeks irrelevant information not reasonably calculated to lead to the discovery of admissible evidence, is overly broad, unduly burdensome, and seeks private financial information. Furthermore, this Request is designed solely to harass the defendants.
PRODUCTION REQUEST NO. 5
To the extent that Defendant has failed to fully admit to every averment contained in the attached Complaint, provide all documents on which Defendant relied to form the basis of that answer and/or have [sic] reviewed or possessed regarding that issue.
ANSWER: Objection: this Request is overly broad, unduly Burdensome [sic], and seeks information protected from compelled disclosure by the work product doctrine. The defendants are not required to compile and label documents as a substitute for the plaintiffs' own investigation of their claims. Subject to and without waiving objection, see the underlying file, which is produced contemporaneously with these responses.

{¶ 8} With respect to production request Nos. 2 and 5, the Paleses specifically sought to compel appellants to produce IOLTA records, "copies of any checks and deposits that clients made payable to Defendant Fedor to cover tax liabilities" and a privilege log and/or unredacted copies of the redacted documents appellants had previously produced for in camera review.

{¶ 9} Appellants filed a combined opposition to the motion to compel and their own motion for a protective order, arguing that (1) the Paleses did not actually request the documents they were seeking; (2) the only discoverable IOLTA records were those related to the Paleses, which had been produced; (3) the discovery requests were overly broad, incomprehensible, sought irrelevant information and constituted an impermissible fishing expedition and (4) the discovery requests sought confidential information of nonparties that was protected from disclosure by the attorney-client privilege. A month later, appellants filed a "supplemental brief" in which they argued that the trial court should grant its motion for protective order because their clients' names and identifying information were trade secrets. The Paleses opposed appellants' supplemental brief.

{¶ 10} On May 16, 2017, the trial court ordered appellants to submit unredacted copies of the documents that they had previously produced along with a privilege log to the court. Appellants complied with the trial court's order. On their privilege log, appellants indicated that the IOLTA bank statements they produced had been redacted to remove references to transactions involving nonparty clients that showed "[c]lient deposit[s] revealing confidential financial information relating to the need for legal services," "[c]lient deposit[s] revealing retainer information for legal services," "[w]ithdrawals" showing "[p]ayment of client obligations revealing nature of legal services" and "service charge[s]" "[r]eveal[ing] client identity and nature of legal services."

{¶ 11} During a status conference a month later, the trial court granted appellants' oral motion for a hearing on the Paleses' motion to compel and appellants' motion for protective order.

{¶ 12} On July 17, 2017, the trial court held a hearing on the motions. The parties' arguments and the evidence presented at the hearing focused almost exclusively on whether appellants should be compelled to produce unredacted copies of bank statements from appellants' IOLTA account. In support of their privilege claim, appellants presented testimony from a single witness, Mary Cibella, an attorney whose practice focuses on professional responsibility matters. Attorney Cibella indicated that she was asked to opine "as to the propriety and/or the duties that related to the disclosure of the documents at issue in this case" and that she had reviewed the case docket, the briefs filed by the parties on the privilege issue, the case law cited in the briefs, Prof.Cond.R. 1.6 and various disciplinary cases and ethics advisory opinions addressing privilege issues in formulating her opinions in this case.

{¶ 13} Attorney Cibella testified regarding appellants' ethical obligation under Prof.Cond.R. 1.6 to maintain the confidentiality of information related to their representation of their clients. She explained that a lawyer's duty to preserve client confidentiality under the ethics rules extends to disclosures that do not in and of themselves reveal privileged information but could reasonably lead to the discovery of "sensitive information" by a third person, even if the information is already in the public domain. She indicated that an attorney has an obligation to take "all reasonable legal steps" to maintain the confidentiality of such information and that if "some event occurs that is going to trigger the information being released in * * * some way," e.g., a court orders the disclosure of the information, the attorney has an obligation to notify and consult with his or her client regarding the "potential abrogation of confidentiality."

{¶ 14} With respect to the unredacted IOLTA bank statements sought in this case, Attorney Cibella testified that under Prof.Cond.R. 1.6, if a nonparty client did not give informed consent authorizing appellants to release the records, they would have a duty under Prof.Cond.R. 1.6 "to use all reasonable efforts against that request" and that this duty would not change even if a stipulated protective order was entered. She opined that if appellants were to "acquiesce in the production of these records," they would be in violation of Prof.Cond.R. 1.6 and potentially subject to disciplinary action. She noted, however, that Prof.Cond.R. 1.6 permits an attorney to comply with a court order requiring disclosure of confidential client information. After Attorney Cibella testified, appellants "rest[ed] on the motion."

{¶ 15} The Paleses then called Attorney Fedor to testify upon cross-examination. He testified regarding who has access to appellants' client information, what client information is disclosed to various persons and entities and appellants' procedures for receiving and depositing client funds and payments.

{¶ 16} On July 18, 2017, after reviewing the briefs and considering the evidence and arguments of counsel, the trial court issued an order granting the Paleses' motion to compel and denying appellants' motion for protective order. The trial court further ordered appellants to "release all documents in unredacted form to reveal all information responsive to plaintiffs' discovery requests" and to file a copy of the documents produced under seal with the trial court no later than July 21, 2017.

{¶ 17} Although the trial court did not specify the reasons for its ruling in its July 18, 2017 journal entry, the trial court explained its reasoning in ordering the production of the unredacted IOLTA bank statements at the hearing as follows:

I understand Mr. Fedor has an obligation ethically to fight for the privilege of his clients and he's more than abundantly done that. He's requested a hearing, which I first viewed [sic] in-camera inspection. He requested a hearing, which I've allowed and an expert being called. I haven't heard any specific reasons other than these sort of general ideas about the sanctity of communications to not allow these documents. Information has to be requested, which my understanding it's the names, dates of the transactions, and the amount. Nothing else. And in the-under the auspices of a protective order, confidentiality agreement, which everyone agreed to in this matter. So I don't see any reason to protect them further from discovery to plaintiff.
And perhaps this effort, and I appreciate the efforts that Mr. Fedor has taken to protect his clients' privilege. And perhaps this can be short-circuited in a way once he informs his clients that this has become an issue, perhaps affidavits from the clients with respect to this specific issue at hand, they'd waive that and could expedite things, at least show the Court of Appeals what clients are worried about their information being revealed with a protective order, confidentiality agreement. So perhaps that might be a way to expedite this.
But I'm going to order it produced.

{¶ 18} Appellants appealed, raising the following assignment of error for review:

The trial court committed reversible error by ordering Appellants to produce to Appellees, pursuant to discovery requests, attorney-client privileged names, addresses, and telephone numbers of certain of Appellants' clients dating back to 2006, as well as Appellants' financial account documents containing attorney-client privileged information (including IOLTA records) from 2006 to the present.

Law and Analysis

{¶ 19} In their sole assignment of error, appellants contend that the trial court erred in ordering the disclosure of "attorney-client privileged non-party client names, addresses and phone numbers" and "financial account records that include attorney-client privileged non-party identities and * * * transaction information" that is not subject to discovery under Civ.R. 26. Appellants assert that the identities of their clients and information regarding their clients' financial transactions are "clearly attorney-client privileged" because disclosure of such information, will reveal "(a) that they have or may have tax problems, (b) that they have been or are under criminal investigation, (c) that they have been or are under IRS investigation, (d) that they have been or are under grand jury investigation, (e) that they have failed to file tax returns, and/or (f) that they did not or are not paying taxes." Appellants further assert that the "mere disclosure" of their clients' names and contact information "may bring disrepute" upon the clients because "given the nature of the Fedor firm practice, it will be immediately evident that the client has a tax issue."

The Attorney-Client Privilege

{¶ 20} Civ.R. 26(B)(1) permits parties to obtain discovery "regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action." At issue in this case is the attorney-client privilege, one of the oldest privileges recognized in the common law. Burnham v. Cleveland Clinic, 151 Ohio St.3d 356, 2016-Ohio-8000, 89 N.E.3d 536, ¶ 17, citing Swidler & Berlin v. United States , 524 U.S. 399, 403, 118 S.Ct. 2081, 141 L.Ed.2d 379 (1998). In Ohio, the attorney-client privilege is governed by statute, R.C. 2317.02(A), which provides a "testimonial privilege," and in cases that are not addressed in R.C. 2317.02(A), by common law. State ex rel. Leslie v. Ohio Hous. Fin. Agency , 105 Ohio St.3d 261, 2005-Ohio-1508, 824 N.E.2d 990, ¶ 18.

{¶ 21} R.C. 2317.02(A)(1) provides that an attorney shall not testify "concerning a communication made to the attorney by a client in that relation or concerning the attorney's advice to a client." The common-law privilege is broader and " 'protects against any dissemination of information obtained in the confidential attorney-client relationship.' " Leslie at ¶ 26, quoting Am. Motors Corp. v. Huffstutler , 61 Ohio St.3d 343, 348, 575 N.E.2d 116 (1991). Although a lawyer may assert the privilege on behalf of a client, the privilege belongs to the client, and unless waived or an exception to the privilege applies, "it offers full protection from discovery." Burnham at ¶ 17.

{¶ 22} The purpose of the attorney-client privilege is to " 'to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.' " Plogger v. Myers , 8th Dist., 2017-Ohio-8229, 100 N.E.3d 104, ¶ 9, quoting Upjohn Co. v. United States , 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). To that end, "[t]he attorney-client privilege exempts from discovery certain communications between attorneys and their clients in the course of seeking or rendering legal advice." Natl. Union Fire Ins. Co. of Pittsburgh v. Ohio State Univ. Bd. of Trustees , 10th Dist. Franklin No. 04AP-1340, 2005-Ohio-3992, 2005 WL 1840220, ¶ 6, citing Boone v. Vanliner Ins. Co. , 91 Ohio St.3d 209, 744 N.E.2d 154 (2001) ; see also Miller v. Bassett , 8th Dist. Cuyahoga No. 86938, 2006-Ohio-3590, 2006 WL 1934788, ¶ 13 (" 'The attorney-client privilege bestows upon a client a privilege to refuse to disclose and to prevent others from disclosing confidential communications made between the attorney and client in the course of seeking or rendering legal advice.' "), quoting Frank W. Schaefer, Inc. v. C. Garfield Mitchell Agency, Inc. , 82 Ohio App.3d 322, 329, 612 N.E.2d 442 (2d Dist.1992).

The attorney-client privilege arises

" '(1) [w]here legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection is waived.' "

State ex rel. Lanham v. DeWine , 135 Ohio St.3d 191, 2013-Ohio-199, 985 N.E.2d 467, ¶ 27, quoting Leslie at ¶ 21, quoting Reed v. Baxter , 134 F.3d 351, 355-356 (6th Cir.1998). "The attorney-client privilege is not an absolute privilege, and it applies only where necessary to achieve its purpose and protects only those communications necessary to obtain legal advice." Perfection Corp. v. Travelers Cas. & Sur. , 153 Ohio App.3d 28, 2003-Ohio-2750, 790 N.E.2d 817, ¶ 26 (8th Dist.). The party asserting the attorney-client privilege as a bar to discovery bears the burden of proving that it applies. Lemley v. Kaiser , 6 Ohio St.3d 258, 263-264, 452 N.E.2d 1304 (1983) ; Waldmann v. Waldmann , 48 Ohio St.2d 176, 178, 358 N.E.2d 521 (1976), citing In re Martin , 141 Ohio St. 87, 103, 47 N.E.2d 388 (1943) ; Holliday v. Gerth , 8th Dist. Cuyahoga No. 86570, 2006-Ohio-934, 2006 WL 496059, ¶ 3.

{¶ 23} A communication need not "pertain purely to legal advice" in order for it to be protected from disclosure by the attorney-client privilege. Morgan v. Butler , 2017-Ohio-816, 85 N.E.3d 1188, ¶ 20 (10th Dist.). " '[I]f a communication between a lawyer and client would facilitate the rendition of legal services or advice, the communication is privileged.' " State ex rel. Toledo Blade Co. v. Toledo-Lucas Cty. Port Auth. , 121 Ohio St.3d 537, 2009-Ohio-1767, 905 N.E.2d 1221, ¶ 27, quoting Dunn v. State Farm Fire & Cas. Co. , 927 F.2d 869, 875 (5th Cir.1991). However, the privilege protects only attorney-client "communications" from disclosure, "it does not prevent disclosure of the underlying fact[s]." Plogger at ¶ 9.

{¶ 24} We apply a de novo standard of review when reviewing a claim of privilege. See, e.g., Ward v. Summa Health Sys. , 128 Ohio St.3d 212, 2010-Ohio-6275, 943 N.E.2d 514, ¶ 13 ("Ordinarily, a discovery dispute is reviewed under an abuse-of-discretion standard. * * * However, if the discovery issue involves an alleged privilege, * * * it is a question of law that must be reviewed de novo."), citing Med. Mut. of Ohio v. Schlotterer , 122 Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13 ; see also Sherwin-Williams Co. v. Motley Rice LLC , 8th Dist. Cuyahoga No. 96927, 2012-Ohio-809, 2012 WL 682747, ¶ 34.

"Special" Attorney-Client Relationship

{¶ 25} Appellants maintain that they should not be required to respond to any of the discovery requests at issue because doing so would disclose the identities of their nonparty clients. Appellants contend that due to the "unique and specialized nature of [appellants'] law practice," the "higher-profile" status of their clients and the "special" attorney-client relationship that exists between them, the identities of all of their nonparty clients are protected from disclosure under the attorney-client privilege.

{¶ 26} In general, a client's identity is not protected by the attorney-client privilege. See, e.g., Lemley , 6 Ohio St.3d at 264, 452 N.E.2d 1304 ; see also 1 Paul R. Rice, Attorney-Client Privilege in the United States, Section 6:15, at 992-997 (2014). This is because, as noted above, the privilege extends to "communications" made in the attorney-client relationship, not the fact that an attorney-client relationship exists. See In re Burns , 42 Ohio Misc.2d 12, 15, 536 N.E.2d 1206 (C.P.1988). Further, identification of the client is usually required when invoking the attorney-client privilege in order to establish the existence of an attorney-client relationship. As with a client's name, a client's address, telephone number and fee information are generally not protected by the privilege. See, e.g., In re Subpoena Duces Tecum Served Upon Attorney John F. Potts ("In re Potts") , 6th Dist. Lucas No. L-01-1033, 2002 WL 737058, at *4 (Apr. 26, 2002), aff'd in part, rev'd in part sub nom. In re Subpoena Duces Tecum Served Upon Attorney Potts , 100 Ohio St.3d 97, 2003-Ohio-5234, 796 N.E.2d 915 (2003). Similarly, the fact of consultation and the general nature of the work performed by the attorney are not usually protected by the privilege. See, e.g., Libertarian Party of Ohio v. Husted , S.D.Ohio No. 2:13-cv-953, 2014 WL 3928293, at *5-6 (Aug. 12, 2014), citing In re Grand Jury Proceedings-Gordon , 722 F.2d 303, 305, 308 (6th Cir.1983) ; 1 Paul R. Rice, Attorney-Client Privilege in the United States, Sections 6:21-6:22, at 1042-1050 (2014); see also State v. Walls, 6th Dist., 2018-Ohio-329, 104 N.E.3d 280, ¶ 67 (the attorney-client privilege "protects the substance of communications-'not the fact that there has been communication' "), quoting Burton v. R.J. Reynolds Tobacco Co. , 170 F.R.D. 481, 484 (D.Kan.1997).

{¶ 27} Appellants acknowledge this general rule but contend that an exception should be recognized that protects a client's identity from disclosure under the attorney-client privilege due to the nature of their practice and the "unique circumstances of this case." Appellants assert that they have a "specialized" practice and "only handle[ ] tax problems." According to appellants, clients retain "specialized attorneys such as [appellants]" "[t]o avoid a potentially embarrassing tax situation," to defend IRS investigations and to avoid or resolve criminal investigations or prosecutions. Appellants assert that their clients are business owners, judges, doctors and attorneys "who occupy positions of trust and status in their communities," and that if a person is identified as a client of appellants, "it will be immediately evident that the client has a tax issue"-a fact that could be "particularly embarrassing or professionally damaging to their careers." Appellants further assert that from the moment a client retains the Fedor law firm "the client's identity and a tax issue are forever linked" and that it is this "special dynamic" that "leads to the conclusion" that the identities of all of appellants' current and former clients fall within the ambit of protection of the attorney-client privilege.

{¶ 28} In both Waldmann and Lemley , the Ohio Supreme Court recognized that there were circumstances in which a client's identity could be subject to the attorney-client privilege. In Waldmann, the court reversed a contempt finding against an attorney in domestic relations matter for refusing to reveal his client's subsequent address, i.e., the address at which the client resided when she moved after filing her complaint. Waldmann , 48 Ohio St.2d at 177-179, 358 N.E.2d 521. The court found that the client's address was subject to the attorney-client privilege because it was necessary to protect the client's safety. As the court explained:

Even when a case falls beyond the strict letter of R. C. 2317.02(A), the principles of that section apply if the case is plainly within the reason and spirit of it. R. C. 2317.03(H).
The confidentiality of a client's address in a domestic relations matter, especially a divorce action, can be a vital feature of the action; it is not uncommon for a spouse who fears for her or his safety to need assurance that their whereabouts will not be disclosed. If a client feels that confidentially divulged matters will not be protected, facts may be withheld which are necessary to competent representation. When the attorney-client privilege exists, the privilege has been held to encompass the protection of the address of the client.

Id. at 177-178, 358 N.E.2d 521, citing In re Heile , 65 Ohio App. 45, 49, 29 N.E.2d 175 (1st Dist.1939).

{¶ 29} In Lemley , two parents turned their infant child over to attorneys to facilitate the private placement of the child for adoption with an unidentified prospective adoptive parent. The parents changed their minds and wanted the child back, but the attorneys refused to assist them. One of the parents filed a complaint seeking a writ of habeas corpus on behalf of the child. The attorneys invoked the attorney-client privilege and refused to disclose the name and address of the person or persons who had the child. Lemley , 6 Ohio St.3d at 258-259, 452 N.E.2d 1304. The trial court issued the writ, commanding the attorneys to either return the child or reveal his location to the court. Id. at 259, 452 N.E.2d 1304. The attorneys appealed and the court of appeals affirmed. Id. In affirming the issuance of the writ against the attorneys, the Ohio Supreme Court noted that the determination of whether client's identity is privileged turns upon the circumstances of the case:

In most instances, the client's name or identity "is not one of the facts about which the client seeks legal assistance; the legal advice will in no way depend on whether the client's name is Jones or Smith." Saltzburg, Communication Falling Within the Attorney-Client Privilege , 66 Iowa L. Rev. 811, 821 (1981). If a case falls plainly within the reason and spirit of R.C. 2317.02(A), its principles shall apply even though a client's name and address may. not, in most circumstances, be within the strictures of R.C. 2317.02(A). Waldmann, supra, at 177 [358 N.E.2d 521].

Id. at 264, 452 N.E.2d 1304. The Ohio Supreme held that the attorney-client privilege did not protect the names and addresses of the prospective adoptive parents in that case because the privilege could not be used to conceal cooperation in wrongdoing. Id. at 265-266, 452 N.E.2d 1304.

{¶ 30} Simply because a client seeks legal advice from a tax attorney does not, as appellants contend, imply that the client has committed a crime, has violated the law or is otherwise "in trouble" with the IRS. See, e.g., United States v. Cedeno , 496 F.Supp.2d 562, 568 (E.D.Pa. 2007) ("The mere fact of consultation with a lawyer does not implicate the defendants' families in any crime; * * * '[s]eeking legal advice is as much a first step in demonstrating innocence or the non-existence of a problem as it is an admission of guilt.' ") quoting In re Shargel , 742 F.2d 61, 64 (2d Cir.1984), fn. 3. Appellants cite no authority to support their claim that the attorney-client privilege applies to protect a client's identity whenever it might lead others to speculate that the client has consulted with an attorney because the client has some type of "tax problem" or other issue that might be potentially embarrassing to a client.

{¶ 31} Nevertheless, we need not decide in this case whether the attorney-client privilege would protect a client's identity from disclosure where the client consults an attorney who has a "specialized" law practice because even if the attorney-client privilege protected against such disclosures, appellants did not meet their burden of establishing that it applied in this case. Although both appellants and amicus curiae The Ohio State Bar Association ("OSBA") make numerous assertions in their brief that "Mr. Fedor's practice is highly specialized and sensitive in nature," that "simply meeting with his firm was a sensitive matter which would indicate the nature of the client's legal problems," that "Mr. Fedor's clients sought his representation for his specialized legal advice that focuses solely on highly-technical and high-stakes tax matters" and that "[b]y simply meeting with these attorneys, the very substance and subject of representation is known," appellants did not present evidence establishing these facts below. The only evidence appellants presented in support of their claim that the information and documents sought by the Paleses are protected from disclosure by the attorney-client privilege was the testimony of Attorney Cibella. Attorney Cibella, however, testified only regarding appellants' ethical obligation to maintain the confidentiality of information received from a client under Prof.Cond.R. 1.6.

{¶ 32} The duty of confidentiality under Prof.Cond.R. 1.6 places ethical restrictions on a lawyer's disclosure of information relating to the representation of the client. Pursuant to Rule 1.6(a), "[a] lawyer shall not reveal information relating to the representation of a client, including information protected by the attorney-client privilege under applicable law, unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation," or the disclosure is otherwise permitted or required by the rule. Prof.Cond.R. 1.9 governs an attorney's obligations to former clients. Prof.Cond.R. 1.9(c)(2) prohibits a lawyer from revealing information relating to the representation of a former client "except as these rules would permit or require with respect to a client."

{¶ 33} However, a lawyer's ethical duty of confidentiality does not define the scope of the attorney-client privilege. Although both a lawyer's ethical duty of confidentiality and the attorney-client privilege address information that the lawyer must keep confidential and are protective of a client's ability to communicate freely with, and confide in, his or her lawyer, there are critical differences between the two in terms of their applicability and the scope of the information covered.

{¶ 34} The attorney-client privilege only protects the "communications" between the client and lawyer for the purpose of rendering legal advice. The ethical duty of confidentiality is much broader than the privilege; it applies to all "information relating to the representation of a client." As explained in Comment 3 to the rule:

The attorney-client privilege * * * appl[ies] in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Ohio Rules of Professional Conduct or other law.

See also Prof.Cond.R. 1.6, Comment 4 ("[Prof.Cond.R. 1.6(a) ] prohibits a lawyer from revealing information relating to the representation of a client. This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person."). Accordingly, Prof.Cond.R. 1.6 does not define what is privileged or shield an attorney from complying with a court discovery order. See Prof.Cond.R. 1.6(b)(6); see also United States v. Servin , 3d Cir., 721 Fed.Appx. 156, 159 (2018), fn. 6.

{¶ 35} The record contains very limited information regarding the nature of appellants' law practice. Attorney Cibella did not offer any testimony regarding appellants' alleged reputation for handling only "sensitive," "specialized" tax matters. Indeed, the only evidence in the record even remotely related to this issue was presented by the Paleses, during their questioning of Attorney Fedor upon cross-examination at the hearing on their motion to compel:

Q. Have you identified that you represent certain clients to third parties not in the firm?
A. I don't understand your question.
Q. Outside of your firm, have you ever said to somebody I represent Bob Smith, he's my client?
A. Typically not because my clientele is-they're business owners, they're sometimes judges, physicians, other attorneys, and if I gave their name out, they would know why they were seeing me. It's a special relationship, unlike a typical attorney-client relationship.

{¶ 36} Unsupported assertions are insufficient to establish a claim of attorney-client privilege. Attorney Fedor did not explain this "special relationship, unlike a typical attorney-client relationship" and appellants offered nothing beyond Attorney Fedor's conclusory assertion to establish that such a relationship in fact existed with respect to each of their current and former clients. Appellants did not submit any affidavits or other evidence supporting their claim that, based on the reputation of the Fedor law firm and the "specialized" nature of its practice, the mere fact that a client consulted with the Fedor law firm would reveal privileged information regarding the representation. Likewise, there was no evidence that the fact that a client consulted with the Fedor law firm would be information the client would necessarily want or expect would be protected from disclosure under the attorney-client privilege.

{¶ 37} Attorney Fedor testified that "[e]ach different client" he represents "has different issues," e.g., "[y]ou could be going through an audit, you might not file tax returns, you might not remit your payroll requirements, you can be under criminal investigation" but that this "[h]as nothing to do with privilege per se." Attorney Fedor further testified that, with respect to certain of his clients, the fact that he represented them had already been disclosed to the IRS or was a matter of public record for clients he had represented in court. He further testified that none of his clients had specifically asked him "to conceal [the client's] identity." Attorney Cibella acknowledged that a client's identity is not automatically privileged and that whether a lawyer can reveal the identity of a client without "permission" is "fact dependent" for each individual client. Attorney Cibella further testified that she had not reviewed any of the documents at issue and her testimony did not address any of the facts and circumstances relevant to a determination of whether the information and documents at issue are protected from disclosure under the attorney-client privilege-as opposed to a lawyer's ethical duty of confidentiality under Prof.Cond.R. 1.6.

{¶ 38} Accordingly, we reject appellants' argument that the identities of appellants' clients and the documents at issue are "within the protective ambit of the attorney-client privilege," In re Grand Jury InvestigationNo. 83-2-35 , 723 F.2d 447, 455 (6th Cir.1983), and, therefore, not discoverable, based solely on the "specialized" nature of appellants' tax practice.

Other Exceptions

{¶ 39} Ohio courts and others have, however, recognized an exception to the general rule that a client's identity is not protected from disclosure by the attorney-client privilege where the client's identity is disclosed to the attorney as part of a confidential communication and is one of the circumstances regarding which the client seeks legal advice. See, e.g., Miller v. Begley , 93 Ohio App.3d 527, 529, 639 N.E.2d 139 (12th Dist.1994) (client's identity was protected by the attorney-client privilege where trial court found disclosure would expose client to civil and criminal liability and was "integrally involved in the matter about which he [sought] the attorney's advice"); Burns , 42 Ohio Misc.2d at 15-16, 536 N.E.2d 1206 (attorney was not required to disclose client's identity where one of the matters about which client, who was allegedly the perpetrator of various sex-related crimes, consulted with attorney was whether to reveal his identity); see also In re Grand Jury InvestigationNo. 83-2-35 , 723 F.2d at 452-453 (under the "legal advice exception," a client's identity is protected from disclosure where there is a strong possibility that identification of the client would implicate the client in the matter for which legal advice was sought); see also In re Potts, 2002 WL 737058, at *4 (discussing the "legal advice exception"). Courts have also held that a client's identity is protected from disclosure where "so much of the actual attorney-client communication has already been disclosed that identifying the client amounts to full disclosure of the communication." See, e.g., United States v. Liebman , 742 F.2d 807, 809 (3d Cir.1984) ; In re Grand Jury Investigation No. 83-2-35 at 453.

{¶ 40} In Liebman , for example, the Third Circuit Court of Appeals held that the attorney-client privilege prohibited a law firm that specialized in tax law and the investigation and evaluation of real estate partnerships for tax purposes from complying with an IRS summons that sought the names of all the firm's clients who paid fees in connection with the acquisition of certain tax shelters. Id. at 808-810. It was established that the firm charged fees only to clients who invested in the tax shelters and that each of those clients had been advised that the fees were deductible as a legal expenses. Id. at 808. The court indicated that if the summons had merely requested the names of clients who paid fees, the information would not be protected by the attorney-client privilege. Id. at 809. However, the summons was "more specific." It identified "not only * * * the subject matter of the attorney-client communication, but describe[d] its substance," i.e., that taxpayers were advised by the law firm that the fee was deductible for income tax purposes. Id. As such, the clients' identities were protected by the attorney-client privilege. As the court explained:

If appellants were required to identify their clients as requested, that identity, when combined with the substance of the communication as to deductibility that is already known, would provide all there is to know about a confidential communication between the taxpayer-client and the attorney. Disclosure of the identity of the client would breach the attorney-client privilege to which that communication is entitled.

Id. at 810.

Specific Discovery Requests at Issue

Interrogatory Nos. 5 and 6

{¶ 41} Applying these principles to the specific discovery requests at hand, we conclude that interrogatory Nos. 5 and 6, which simply seek the identification of appellants' bank accounts, do not seek information protected from disclosure by the attorney-client privilege. Accordingly, the trial court did not err in overruling appellants' objections to the discovery of this information based on the attorney-client privilege.

Interrogatory Nos. 8 and 10

{¶ 42} Likewise, appellants have not shown that the attorney-client privilege bars disclosure of the factual information sought in interrogatory Nos. 8 and 10. Accordingly, the trial court did not err in overruling appellants' objections to the discovery of this information based on the attorney-client privilege.

The IOLTA Records

{¶ 43} Similarly, appellants have not shown that the IOLTA records at issue are protected from disclosure by the attorney-client privilege. The unredacted IOLTA records consist of bank statements issued by Key Bank for the law firm's IOLTA account. They list the dates and amounts of various deposits, withdrawals, charges and transfers into and out of the account. Although Attorney Cibella testified that her "understanding" was that "the records are with respect to moneys that may have been given to Mr. Fedor to resolve some other pending tax litigation, tax disputes," she did not review the IOLTA bank statements and acknowledged that retainers, advances for expenses and any other client money that comes into a lawyer's possession for future disbursement must be placed into the lawyer's IOLTA account and disbursed from that account.

{¶ 44} Although certain of the line items on the IOLTA bank statements identify a client (by listing the name of the client) with which a particular transaction is associated, they do not reveal the purpose for which any funds have been deposited into or withdrawn from the account, any direction by the client with respect to how funds are to be distributed, the nature of the legal services with which any of the transactions are associated or the subject matter or substance of any attorney-client communication.

{¶ 45} Although we are aware of no Ohio appellate court that has addressed the issue, federal courts that have considered the issue have long held that bank records relating to the transfer of funds into or out of a lawyer's trust account are not in and of themselves privileged communications. See, e.g., SEC v. First Sec. Bank of Utah, NA. , 447 F.2d 166, 167 (10th Cir. 1971), cert. denied , 404 U.S. 1038, 92 S.Ct. 710, 30 L.Ed.2d 729 (1972) ; see also Harris v. United States , 413 F.2d 316, 320 (9th Cir. 1969) ("[C]ourts have repeatedly held that checks and bank records are not subject to the protection of the attorney-client privilege."); In re Grand Jury Subpoena , 831 F.2d 225, 227-228 (11th Cir. 1987) ("An attorney who acts as his client's agent for receipt or disbursement of money or property to or from third parties is not acting in a legal capacity, and records of such transactions are not privileged."); Nimmer v. SEC , D.Neb. No. 11-CV-162, 2011 WL 3156791, at *3 (July 26, 2011) ("When an attorney acts as a conduit for a client's funds, attorney-client privilege does not apply."); Grewal & Assocs., P.C. v. Hartford Cas. Ins. Co., 2010 WL 3909491, at *3 (Sept. 30, 2010) (noting that "[f]or at least forty years * * *, the federal courts have squarely rejected the recognition of any privilege attaching to an attorney's bank records, whether those records relate to the attorney's general account or client trust accounts"). This is because the attorney-client privilege extends only to " 'the substance of matters communicated to an attorney in professional confidence' " and "[t]he deposit and disbursement of money in a commercial checking account are not confidential communications." First Sec. Bank at 167, quoting Colton v. United States , 306 F.2d 633, 637 (2d Cir.1962).

{¶ 46} As one court explained in rejecting a claim that bank records relating to a lawyer's IOLTA account contained privileged or confidential client information:

Generally, there is no legitimate expectation of privacy in the contents of checks, deposit slips or bank statements in a bank's possession. * * * Checks are negotiable instruments used in commercial transactions, voluntarily conveyed to banks, and exposed to the banks' employees in the ordinary course. * * * Case law establishes that [the lawyer's] bank records are not protected by the attorney-client privilege. * * * The [lawyer's] arguments ignore the basic nature of such banking transactions. They are not confidential communications among attorney and client. They are commercial transactions which disclose the identity and other identifiers of the parties to the transaction to the third party banking institution. Even if the transactions could be viewed by a large stretch of the imagination to be communicative, in no way could they be considered confidential. If the [lawyers] and their clients sought confidentiality regarding the monetary transactions, they blew any cover of secrecy by utilizing a commercial banking enterprise.

Najjar v. United States , S.D.Ind. No. 1:02-cv-1807-JDT-WTL, 2003 WL 21254772, at *2-3 (Apr. 11, 2003) ; see also SEC v. W Fin. Group, LLC , N.D.Tex. No. 3-08-CV-0499-N, 2009 WL 636540, at *1-2 (Mar. 9, 2009) (rejecting contention that bank records relating to the transfer of funds into and out of attorney's IOLTA account were privileged).

{¶ 47} Similarly, the Ninth Circuit Court of Appeals, in affirming the denial of a motion to quash an IRS summons issued to the Bank of America for production of an attorney's bank records, stated:

It is well settled that there is no privilege between a bank and a depositor[.] * * * In refusing to extend the privilege, we stated [in Harris v. United States , 413 F.2d 316 (9th Cir. 1969) ]:
The reasons which led to the attorney-client privilege, such as the aim of encouraging full disclosure in order to enable proper representation, do not exist in the case of a bank and its depositor. Moreover, the client, by writing the check which the attorney will later cash or deposit at the bank, has set the check afloat on a sea of strangers. The client knows when delivering the check, and the attorney knows when cashing or depositing it, that the check will be viewed by various employees at the bank where it is cashed or deposited, at the clearing house through which it must pass, and at his own bank to which it will eventually return. Thus, the check is not a confidential communication, as is the consultation between attorney and client.
Id. at 319-20. * * * [T]here is no confidentiality where a third party such as a bank either receives or generates the documents sought by the IRS. Because the attorney-client privilege applies only where the communication between attorney and client is confidential, there is no privilege protecting the documents the IRS seeks in the present action. * * * "[T]he attorney-client privilege ordinarily protects neither the client's identity nor information regarding the fee arrangements reached with the client." United States v. Horn (In re Horn ), 976 F.2d 1314, 1317 (9th Cir. 1992).

Reiserer v. United States , 479 F.3d 1160, 1165 (9th Cir. 2007).

{¶ 48} Appellants and the OSBA argue that the use of an IOLTA account to process client funds does not waive the attorney-client privilege because the attorney-client privilege includes communications made through a client's or attorney's agent. However, waiver is not the issue here. Waiver can occur only when the attorney-client privilege would otherwise apply. As the above-cited cases demonstrate, IOLTA banking transactions are not confidential communications between an attorney and his or her client. Accordingly, the attorney-client privilege does not apply. Appellants and the OSBA have not cited any authority to the contrary. The trial court did not err in overruling appellants' objections to the discovery of this information based on the attorney-client privilege.

Interrogatory No. 7 and Financial Documents Relating to Payments to Satisfy Tax Liabilities

{¶ 49} We conclude that interrogatory No. 7 and the Paleses' request for "copies of any checks and deposits that clients made payable to Defendant Fedor to cover tax liabilities" invade the attorney-client privilege. With respect to these requests, we conclude so much has already been disclosed in the requests themselves that identification of clients or production of documents in response to these requests would in effect reveal privileged attorney-client communications, i.e., by linking clients to the content of particular attorney-client communications. Because there has been no claim or showing that any clients waived the attorney-client privilege with respect to such communications, the trial court erred in ordering appellants to respond to those requests.

Interrogatory Nos. 9 and 11

{¶ 50} Likewise, we conclude that interrogatory Nos. 9 and 11 invade the attorney-client privilege. If appellants were to identify clients who meet the descriptions set forth in these requests, they would directly, or by reasonable inference, reveal the content of privileged attorney-client communications. Because there has been no claim or showing that any clients waived the attorney-client privilege with respect to such communications, the trial court erred in ordering appellants to respond to those requests.

{¶ 51} Appellants' assignment of error is sustained in part and overruled in part. We reverse the trial court as to interrogatory Nos. 7, 9 and 11 and the Paleses' request for "copies of any checks and deposits that clients made payable to Defendant Fedor to cover tax liabilities." We affirm the trial court's decision as to interrogatory Nos. 5, 6, 8, 10 and the IOLTA bank statements and remand the case for further proceedings consistent with this opinion.

{¶ 52} Judgment affirmed in part, reversed in part and remanded.

TIM McCORMACK, J., and FRANK D. CELEBREZZE, JR., J., CONCUR

      The Paleses' discovery requests were actually directed to "Defendant Aviation Personnel, LLC." As Aviation Personnel, L.L.C. was not a party to the action, appellants indicated in their discovery responses that they assumed the Paleses had intended to propound the discovery to all of the named defendants.

      Pursuant to the stipulated protective order, either party could designate documents as "confidential-subject to protective order" "upon making a good faith determination that the documents contain information protected from disclosure by statute or that should be protected from disclosure as confidential personal information (including but not limited to Social Security numbers, benefits information, and similar confidential personal information), medical or psychiatric information, personnel records, proprietary business information, financial information, and/or trade secrets." Documents so designated could be used or disclosed by the opposing party, counsel and other authorized third parties only to prepare for and to conduct discovery and the trial and any appeal in the case. Any court filings referencing documents covered by the protective order were to be filed under seal. Use of such documents at trial was to be subject to further court order.

      Attorney Cibella did not specifically address the propriety of responding to any of the discovery requests at issue or the disclosure of any other documents in the case. She indicated that her understanding was that the Paleses were "asking for the trust records." She further testified that she had not seen the IOLTA bank statements at issue.

      There is nothing in the record to indicate that any affidavits were obtained.

      The issue before this court is whether the documents and information at issue are protected from discovery under the attorney-client privilege. Accordingly, we do not consider whether the requested information and documents are otherwise discoverable, e.g., whether the discovery requests at issue seek information that is relevant to the issues in the case or appear reasonably calculated to lead to the discovery of admissible evidence.

      Appellants make only a blanket claim that the identities of all of their current and former clients dating back to 2006 are protected from disclosure by the attorney-client privilege. Appellants have not made any claim or presented any evidence that the identity of any particular client should be privileged based on the specific facts and circumstances relating to that client.

      Appellants also argue that we should overturn the trial court's order because it will allow appellees to "contact appellants' current and past clients, harass said clients under the guise of 'discovery,' and threaten to publicly reveal the fact that said non-[party] clients sought and/or received legal services from Appellants." Appellants assert that disclosing the requested information "will condemn [their] past and future clients to a fate of subpoenas, subpoenas duces tecum, and public exposure." Simply because appellants' current or former clients may be contacted as potential witnesses if their identities are disclosed does not impact the determination of whether their identities are protected from disclosure by the attorney-client privilege. The concerns appellants raise with respect their clients in this case would apply to any witness in any case. The Ohio Rules of Civil Procedure have protections in place to protect third parties from harassment or other discovery abuses. Further, a stipulated protective order is in place in this case. To the extent that any of the information or documents at issue are produced subject to the stipulated protective order, the Paleses would be bound by the terms of that protective order.