State ex rel. Leslie v. Ohio Hous. Fin. Agency - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as State ex rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St.3d 261, 2005-Ohio-1508.]

THE STATE EX REL. LESLIE, APPELLEE AND CROSS-APPELLANT, v. OHIO
HOUSING FINANCE AGENCY ET AL., APPELLANTS AND CROSS-APPELLEES.
[Cite as State ex rel. Leslie v. Ohio Hous. Fin. Agency,
105 Ohio St.3d 261, 2005-Ohio-1508.]
Evidence -- Privileges -- Attorney-client privilege -- Privilege applies to
communications between a state agency and its in-house counsel, even
when that counsel is not an Assistant Attorney General.
(No. 2004-0105 -- Submitted January 11, 2005 -- Decided April 13, 2005.)
APPEAL and CROSS-APPEAL from the Court of Appeals for Franklin County,
No. 02AP-1147, 2003-Ohio-6560.
__________________

O'CONNOR, J.
{¶ 1} In this case, we must decide whether the attorney-client privilege
applies to state agencies and their in-house counsel when that counsel is not an
Assistant Attorney General. After examining the scope and purpose of the
attorney-client privilege, we conclude that the privilege applies to government
clients and that notwithstanding various statutes cited in opposition, the privilege
exists between a state agency and its in-house counsel even if that counsel is not
an Assistant Attorney General.
{¶ 2} From August 2000 through February 2002, the Ohio Department
of Development employed appellee and cross-appellant, attorney Mark A. Leslie,
as its Chief of Compliance. In that capacity, Leslie's duties included conducting
certain ministerial functions for appellant and cross-appellee Ohio Housing
Finance Agency in compliance with state law. Effective March 1, 2002, the
Department of Development terminated Leslie's employment.

SUPREME COURT OF OHIO
{¶ 3} In October 2002, Leslie filed a complaint in the Court of Appeals
for Franklin County naming appellants and cross-appellees Ohio Housing Finance
Agency, Chief Legal Counsel for the Department of Development, and the board
members and other officials of the Ohio Housing Finance Agency as respondents.
Leslie also named the State Treasurer, State Auditor, and two Ohio Department of
Commerce officials as respondents. Leslie alleged that appellants and other
respondents had violated certain laws. For example, Leslie claimed that the Ohio
Housing Finance Agency had disbursed unclaimed funds in the form of loans that
were not authorized by R.C. Chapter 175. Leslie requested a writ of mandamus to
compel appellants and other respondents to cease the alleged illegal activities and
to comply with the applicable law. Leslie further requested that the State Auditor
perform audits to ensure compliance.
{¶ 4} On December 10, 2002, appellants and other respondents moved to
dismiss Leslie's complaint. The State Auditor attached a 2001 audit to his
dismissal motion. The court of appeals treated the auditor's motion as one for
summary judgment and set times for Leslie to respond to the motions.
{¶ 5} On December 30, 2002, Leslie replied to the dismissal motions.
His reply contained two lengthy endnotes describing various documents and
explaining his discharge. On January 14, 2003, Leslie replied to the auditor's
motion for summary judgment. He attached various documents, including several
that disclosed legal advice from in-house counsel to Ohio Housing Finance
Agency staff.
{¶ 6} On January 15, 2003, the court of appeals magistrate
recommended granting the motions of appellants and other respondents and
dismissing Leslie's mandamus claim. On January 16, 2003, the magistrate denied
the auditor's summary-judgment motion as moot.
{¶ 7} On January 27, 2003, appellants, Ohio Housing Finance Agency,
its staff, its board, and the Chief Legal Counsel of the Department of
2

January Term, 2005
Development, moved to strike the endnotes from Leslie's December 30, 2002
reply to appellants' motion to dismiss, seal those portions protected by attorney-
client privilege, and obtain a protective order to prohibit Leslie's disclosure of
privileged records.
{¶ 8} On February 11, 2003, appellants filed a second motion to strike
and seal and for a protective order. This motion related to Leslie's affidavit and
attachments to his January 14, 2003 reply to the auditor's summary-judgment
motion. Appellants claimed that the affidavit and certain attachments were
protected by attorney-client privilege.
{¶ 9} On February 20, 2003, Leslie replied to the motions to strike and
seal and for protective orders. Leslie again attached documents to his reply.
Appellants moved to strike Leslie's February 20, 2003 reply as untimely.
{¶ 10} On June 17, 2003, the court of appeals adopted the magistrate's
recommendation to dismiss Leslie's mandamus claim but stayed the dismissal
until the magistrate ruled upon the pending motions. On August 28, 2003, the
magistrate recommended that the court of appeals (1) grant appellants' motion to
strike the endnotes in Leslie's December 30, 2002 reply, (2) deny appellants'
motion to seal and for a protective order on Leslie's December 30, 2002 reply, (3)
deny appellant's motion to strike and seal and motion for a protective order on
Leslie's January 14, 2003 reply, (4) grant appellants' motion to strike the
attachments to Leslie's February 20, 2003 reply, and (5) deny appellants' motion
to strike Leslie's February 20, 2003 response as untimely. The magistrate applied
the court of appeals' precedent in State ex rel. Olander v. French (July 16, 1996),
Franklin App. No. 96APD04-501, 1996 WL 403802, which held that the attorney-
client privilege does not exist between a state agency and its in-house counsel
unless the attorney is a member of the Attorney General's office.
{¶ 11} Appellants objected to the magistrate's decision. On December 9,
2003, the court of appeals overruled the objections and adopted the magistrate's
3

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decision. Nevertheless, two of the three court of appeals' judges "reluctantly"
concurred "because Olander has not been overruled and remains the law in this
district." These judges believed that Olander "was wrongly decided."
{¶ 12} On January 16, 2004, appellants filed their notice of appeal, and on
January 20, 2004, Leslie cross-appealed. The cause is now before this court upon
an appeal and cross-appeal as of right.
{¶ 13} On July 14, 2004, we granted the parties' requests for oral
argument. State ex rel. Leslie v. Ohio Hous. Fin. Agency, 102 Ohio St.3d 1528,
2004-Ohio-3580, 811 N.E.2d 1148. On January 11, 2005, we heard oral
argument on this appeal and cross-appeal.
Appeal: Attorney-Client Privilege
{¶ 14} Appellants assert that the court of appeals erred in applying State
ex rel. Olander v. French (July 16, 1996), Franklin App. No. 96APD04-501, 1996
WL 403802, in which the court of appeals held that the "attorney-client privilege
does not exist between members of a given state agency or department except the
Office of the Attorney General." Appellants claim that eight of the attachments to
Leslie's January 14, 2003 reply to the auditor's motion for summary judgment
and one of Leslie's attachments to his February 20, 2003 reply to appellants'
motions to strike and seal and for protective orders should have been stricken
from the record and sealed based on attorney-client privilege.
{¶ 15} Leslie counters that the attorney-client privilege does not apply to
in-house counsel of state agencies and that the court of appeals properly applied
its Olander precedent to exempt the challenged records from the privilege.
{¶ 16} For the following reasons, we find that rejecting Leslie's
contentions and the court of appeals' Olander decision is consistent with the
weight of precedent and markedly advances the purpose of the attorney-client
privilege.
Attorney-Client Privilege: Purpose and Elements
4

January Term, 2005
{¶ 17} "The privilege of a witness, person, state or political subdivision
thereof shall be governed by statute enacted by the General Assembly or by
principles of common law as interpreted by the courts of this state in the light of
reason and experience." Evid.R. 501.
{¶ 18} In Ohio, the attorney-client privilege is governed by statute, R.C.
2317.02(A), and in cases that are not addressed in R.C. 2317.02(A), by common
law. See, e.g., R.C. 2317.02(A), which provides that in general, an attorney shall
not testify "concerning a communication made to the attorney by a client in that
relation or the attorney's advice to a client"; see, also, State v. McDermott (1995),
72 Ohio St.3d 570, 574, 651 N.E.2d 985, distinguishing State v. Post (1987), 32
Ohio St.3d 380, 513 N.E.2d 754 ("The Post court, therefore, recognized a
judicially created attorney-client privilege where, without the presence of the
attorney, the communications between the client and * * * the attorney's agent[]
were deemed privileged. The court then properly decided how that common-law
attorney-client privilege could be waived. The circumstances of waiver
recognized in that case have no relationship to communications that fall squarely
within the statutory privilege based on direct communications between attorneys
and clients"). (Emphasis added.)
{¶ 19} "The attorney-client privilege is one of the oldest recognized
privileges for confidential communications." Swidler & Berlin v. United States
(1998), 524 U.S. 399, 403, 118 S.Ct. 2081, 141 L.Ed.2d 379. The privilege dates
at least to "the reign of Elizabeth I, where the privilege was already well
established." Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, 660,
635 N.E.2d 331.
{¶ 20} "Its purpose is 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. The privilege recognizes that
sound legal advice or advocacy serves the public ends and that such advice or
5

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advocacy depends upon the lawyer's being fully informed by the client." Upjohn
Co. v. United States (1981), 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584;
Cargotec, Inc. v. Westchester Fire Ins. Co., 155 Ohio App.3d 653, 2003-Ohio-
7257, 802 N.E.2d 732, ¶ 7. "[B]y protecting client communications designed to
obtain legal advice or assistance, the client will be more candid and will disclose
all relevant information to his attorney, even potentially damaging and
embarrassing facts." (Footnote omitted.) 1 Rice, Attorney-Client Privilege in the
United States (2d Ed.1999) 14-15, Section 2.3; Taylor v. Sheldon (1961), 172
Ohio St. 118, 121, 15 O.O.2d 206, 173 N.E.2d 892 ("the purpose of this rule is to
permit complete freedom of disclosure by a client to his attorney without fear that
any facts so disclosed will be used against him").
{¶ 21} Under the attorney-client privilege, "(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." Reed v. Baxter
(C.A.6, 1998), 134 F.3d 351, 355-356; Perfection Corp. v. Travelers Cas. & Sur.
Co., 153 Ohio App.3d 28, 2003-Ohio-2750, 790 N.E.2d 817, ¶ 12. Except under
circumstances not relevant here, only the client can waive the privilege. See Allen
Cty. Bar Assn. v. Williams, 95 Ohio St.3d 160, 2002-Ohio-2006, 766 N.E.2d 973,
¶ 9-14.
Attorney-Client-Privilege: Extension to Government Clients
{¶ 22} Courts have held that the attorney-client privilege applies to
pertinent communications between attorneys and their corporate clients. See, e.g.,
Upjohn, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584 (communications made by
corporate employees acting at direction of corporate superiors in order to secure
legal advice for corporation from corporate counsel are protected by attorney-
client privilege); Am. Motors Corp. v. Huffstutler (1991), 61 Ohio St.3d 343, 575
6

January Term, 2005
N.E.2d 116 (former attorney-employee of corporation enjoined from disclosing
matters covered by attorney-client privilege); 1 Rice, Attorney-Client Privilege in
the United States, at 53, Section 3:14 ("The confidential communications between
in-house counsel and th[e] client are privileged to the same extent as
communications between outside retained counsel and the clients who have
consulted them for legal advice or assistance").
{¶ 23} In the related context of attorney-employees of government
entities, "[t]here is surprisingly little case law on whether a government agency
may also be a client for purposes of this privilege * * *." In re Witness Before
Special Grand Jury 2000-2 (C.A.7, 2002), 288 F.3d 289, 291. Nevertheless, the
weight of existing authority applies the attorney-client privilege to confidential
communications between government agencies and their attorney-employees. 1
Rice, Attorney-Client Privilege in the United States, at 124, Section 4:28 ("When
government agencies consult with legal counsel for the purpose of obtaining legal
advice or assistance (regardless of whether it be in-house agency counsel,
attorneys from the Department of Justice, or outside counsel) the attorney-client
privilege protects its communications to those attorneys"); 1 Strong, McCormick
on Evidence (5th Ed. 1999) 355, Section 88 ("more recently the privilege has been
held to extend to communications to an attorney representing the state");
Restatement of the Law 3d, Law Governing Lawyers (2000), Section 74 ("the
attorney-client privilege extends to a communication of a governmental
organization * * * and of an individual employee or other agent of a governmental
organization as a client"); Green v. Internal Revenue Serv. (N.D.Ind.1982), 556
F.Supp. 79, 85, affirmed (C.A.7, 1984), 734 F.2d 18 (privilege "also
unquestionably is applicable to the relationship between Government attorneys
and administrative personnel").
{¶ 24} In Ohio, courts have consistently recognized that "[r]ecords of
communications between attorneys and their state-government clients pertaining
7

SUPREME COURT OF OHIO
to the attorneys' legal advice are excepted from disclosure under R.C.
149.43(A)(1) since the release of these records is prohibited by state law" -- i.e.,
they are protected by this state's attorney-client privilege. State ex rel. Thomas v.
Ohio State Univ. (1994), 71 Ohio St.3d 245, 249, 643 N.E.2d 126; State ex rel.
Besser v. Ohio State Univ. (2000), 87 Ohio St.3d 535, 542, 721 N.E.2d 1044;
State ex rel. Nix v. Cleveland (1998), 83 Ohio St.3d 379, 383, 700 N.E.2d 12;
Woodman v. Lakewood (1988), 44 Ohio App.3d 118, 541 N.E.2d 1084.
{¶ 25} Leslie challenges this precedent by contending that R.C.
2317.02(A), the statutory attorney-client privilege, does not apply to government
clients. Leslie further claims that the privilege should be limited to trial-
preparation materials and that the authority extending the privilege to government
entities subverts R.C. 149.43, Ohio's Public Records Act, and R.C. 124.341,
Ohio's whistleblower-protection statute for state employees.
{¶ 26} Leslie's claims lack merit. Even assuming that R.C. 2317.02(A)
does not extend attorney-client privilege to government entities (see R.C.
2317.021, defining "client"), the common-law attorney-client privilege
recognized in Ohio would apply. See McDermott, 72 Ohio St.3d at 574, 651
N.E.2d 985; Post, 32 Ohio St.3d 380, 513 N.E.2d 754 (recognizing a judicially
created attorney-client privilege); Ex Parte Martin (1943), 141 Ohio St. 87, 101,
25 O.O. 225, 47 N.E.2d 388 (same). R.C. 2317.02(A), by its very terms, is a
mere testimonial privilege precluding an attorney from testifying about
confidential communications. The common-law attorney-client privilege,
however, "reaches far beyond a proscription against testimonial speech. The
privilege protects against any dissemination of information obtained in the
confidential relationship." Am. Motors, 61 Ohio St.3d at 348, 575 N.E.2d 116.
{¶ 27} Admittedly, the government attorney-client privilege has been
subject to some criticism. See, e.g., Melanie B. Leslie, Government Officials as
8

January Term, 2005
Attorneys and Clients: Why Privilege the Privileged? (2002), 77 Ind.L.J. 469,1
and Rule 502(d)(7) of the Revised Uniform Rules of Evidence (1999).
Nevertheless, the prevailing rule remains that "governmental agencies and
employees enjoy the same privilege as [their] nongovernmental counterparts."
Restatement of the Law 3d, Law Governing Lawyers (2000), Section 74,
Comment b. Significantly, Ohio has not adopted Rule 502(d)(7) of the Revised
Uniform Rules of Evidence (1999).
{¶ 28} Moreover, "courts generally have construed open-meeting, open-
files, whistle-blower, and similar statutes as subject to the attorney-client
privilege, recognizing that otherwise governments would be at unfair
disadvantage in litigation, in handling claims and in negotiations." Id. at
Comment b; see, e.g., Orlando v. Desjardins (Fla.1986), 493 So.2d 1027, 1029.
Ohio courts are no exception. See, e.g., TBC Westlake, Inc. v. Hamilton Cty. Bd.
of Revision (1998), 81 Ohio St.3d 58, 62-63, 689 N.E.2d 32 ("common-law
privileges, such as the attorney-client privilege, are state laws that prohibit release
of public records" under Ohio's Public Records Act); Shaffer v. OhioHealth
Corp., Franklin App. No. 03AP-102, 2004-Ohio-63, 2004 WL 35725 (in action
for unlawful termination under Ohio whistleblower statute, attorney-client
privilege applied to communications between corporate counsel and corporate
president who was later fired).
{¶ 29} We also do not share Leslie's fears that governmental entities will
blatantly attempt to avoid public-record laws by using the attorney-client privilege
as a shield against disclosure. Simply stated, an attorney does not become any

1. This law journal article concludes, "The reflexive assumption that a government attorney-client
privilege is necessary to ensure that government actors communicate openly with government is a
fiction. At most, government entities should be able to claim a limited litigation privilege that
enables them to shield communications made in furtherance of trial preparation. This approach
would be consistent with early case law. In addition, it would make government entities more
accountable to the citizens they serve, at no cost to the government's ability to function
effectively." Id. at 549-550.
9

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less of an attorney by virtue of state agency employment. That is so even if the
attorney's position includes performance of nonlegal or so-called ministerial
duties. The privilege applies when legal advice of any kind is sought from the
legal advisor in that capacity and the client's confidential communication relates
to that purpose. In other words, Leslie's example of a corporation sending copies
of memos to attorney-employees so as to hide them from the public
misunderstands the limitations built into the privilege itself.
{¶ 30} Therefore, in Ohio, the attorney-client privilege extends to
government agencies consulting with in-house counsel for legal advice or
assistance.
Attorney-Client Privilege: State Agencies: Olander and R.C. 109.02
{¶ 31} The court of appeals held that based on its decision in Olander,
"the attorney-client privilege does not exist between a state agency and its in-
house attorney unless the attorney is a member of the [Attorney General's]
office." (Emphasis sic.) Leslie argues that R.C. 109.02 limits the attorney-client
relationship in the state government context to the relationship between the state
and attorneys representing it who are from the Attorney General's office. Thus,
he claims, the attorney-client privilege does not extend to attorneys who are not
employed by the Attorney General.
{¶ 32} R.C. 109.02 provides that with certain specified exceptions
inapplicable here, the Attorney General is the chief law officer for the state and its
departments, and no state board or officer shall be represented by other attorneys:
{¶ 33} "The attorney general is the chief law officer for the state and all
its departments * * *. * * * [N]o state officer or board, or head of a department
or institution of the state shall employ, or be represented by, other counsel or
attorneys at law. The attorney general shall appear for the state in the trial and
argument of all civil and criminal causes in the supreme court in which the state is
directly or indirectly interested. When required by the governor or the general
10

January Term, 2005
assembly, the attorney general shall appear for the state in any court or tribunal in
a cause in which the state is a party, or in which the state is directly interested.* *
* " (Emphasis added.)
{¶ 34} R.C. 109.02 does not limit the attorney-client privilege in the state
government context to communications with attorneys employed by the Attorney
General's office, for the following reasons.
{¶ 35} First, the Supreme Court of Ohio has exclusive original jurisdiction
over the "[a]dmission to the practice of law, the discipline of persons so admitted,
and all other matters relating to the practice of law." Section 2(B)(1)(g), Article
IV, Ohio Constitution; Royal Indemn. Co. v. J.C. Penney Co., Inc. (1986), 27
Ohio St.3d 31, 27 OBR 447, 501 N.E.2d 617. Thus, the "exclusive authority to
regulate the practice of law is vested in the Ohio Supreme Court." In re Karasek
(1997), 119 Ohio App.3d 615, 631, 695 N.E.2d 1209; see, also, Melling v. Stralka
(1984), 12 Ohio St.3d 105, 107, 12 OBR 149, 465 N.E.2d 857.
{¶ 36} Second, R.C. 109.02 is directed toward the legal representation of
state agencies and officers in courts or tribunals instead of legal advice given by
in-house counsel to state agencies and officers on day-to-day matters. The
sentence at issue in R.C. 109.02 provides that "no state officer or board, or head
of a department or institution of the state shall employ, or be represented by, other
counsel or attorneys at law." (Emphasis added.) The next three sentences in R.C.
109.02 address instances in which the Attorney General appears in courts or
tribunals: "The attorney general shall appear for the state in the trial and
argument of all civil and criminal causes in the supreme court in which the state
is directly or indirectly interested. When required by the governor or the general
assembly, the attorney general shall appear for the state in any court or tribunal in
a cause in which the state is a party, or in which the state is directly interested.
Upon the written request of the governor, the attorney general shall prosecute any
person indicted for a crime." (Emphasis added.)
11

SUPREME COURT OF OHIO
{¶ 37} Third, R.C. 109.02 does not specify any sanctions for the
employment by state agencies of attorneys not employed by the Attorney General.
More particularly, R.C. 109.02 does not purport to preclude a state agency's
attorneys from giving legal advice. Nor does R.C. 109.02 specify that legal
advice given by in-house counsel to state agencies and officials is not covered by
the attorney-client privilege.
{¶ 38} Fourth, R.C. 121.14 permits state departments to "employ, subject
to the civil service laws in force at the time the employment is made, the
necessary employees." One of the state departments created by the General
Assembly is Leslie's former employer, the Ohio Department of Development.
R.C. 121.01(A) and 121.02(N).
{¶ 39} Fifth, precedent supports appellants' position that R.C. 109.02 does
not preclude attorneys employed by state agencies like the Department of
Development from engaging in the practice of law. In State ex rel. Devine v.
Schwarzwalder (1956), 165 Ohio St. 447, 451-454, 60 O.O. 95, 136 N.E.2d 47,
we held that notwithstanding R.C. 109.02, a respondent who served as attorney-
examiner and Chief of the Permit Division of the Department of Liquor Control
was actively engaged in the practice of law so as to be entitled to have these
employment periods added to the five-year period specified in R.C. 1901.06 so as
to qualify him for the office of municipal court judge. We emphasized that much
more recent statutes, see, e.g., R.C. 121.02 and 121.14, permitted state agencies
like the Department of Liquor Control to employ necessary employees, including
attorneys, despite R.C. 109.02. Id. at 451-452, 60 O.O. 95, 136 N.E.2d 47.
{¶ 40} Leslie erroneously relies on the views of dissenting opinions never
adopted by the court, see Devine, 165 Ohio St. at 454-455, 60 O.O. 95, 136
N.E.2d 47 (Taft, J., dissenting), and case law that has been overruled. See State
ex rel. Flynn v. Cuyahoga Bd. of Elections (1955), 164 Ohio St. 193, 57 O.O. 402,
12

January Term, 2005
129 N.E.2d 623, overruled by State ex rel. Schenck v. Shattuck (1982), 1 Ohio
St.3d 272, 1 OBR 382, 439 N.E.2d 891.
{¶ 41} Sixth, at most, R.C. 109.02 recognizes the Attorney General as the
primary counsel for state agencies and officials focusing on in-court
representation. Nothing in R.C. 109.02 prohibits the Attorney General from
assenting to certain representation for state agencies and officials by other
counsel. This assent is reflected in a September 1999 memorandum of
understanding between the Attorney General and the Governor. In that
memorandum, the Attorney General and Governor "recognized that [state
agencies and officials] need[] attorney employees to provide legal advice to
properly address the complex issues which confront [them] on a daily basis" and
that legal communications between state agencies and officials and their in-house
counsel "are subject to attorney-client privilege." In fact, even the Attorney
General can waive the right to invoke R.C. 109.02. See DeRolph v. State (2001),
94 Ohio St.3d 40, 42, 760 N.E.2d 351 ("The time has now passed for the Attorney
General to object, and we find that the state has waived its right to challenge the
separate appearance of the officials * * * or their representation by separate
counsel").
{¶ 42} Finally, Leslie's construction of R.C. 109.02 might lead to the
absurd result that his own employment as an attorney with the Department of
Development was prohibited. See State ex rel. Webb v. Bliss, 99 Ohio St.3d 166,
2003-Ohio-3049, 789 N.E.2d 1102, ¶ 22 (court has duty to construe statutes to
avoid unreasonable or absurd results).
Conclusion: Appeal on Attorney-Client Privilege
{¶ 43} In sum, the communications by attorney-employees of the state
departments in question were subject to the attorney-client privilege and should
have been sealed. This furthers the laudatory objectives of the privilege:
complete and candid communication between attorneys and clients. It also
13

SUPREME COURT OF OHIO
clarifies that the privilege extends to confidential communications between
attorneys and their state-agency clients, notwithstanding R.C. 109.02. It further
enhances the efficiency of state agencies. By so holding, we reject Olander, the
solitary case that held otherwise, which even the panel of the same court of
appeals in this case believed was "wrongly decided."
{¶ 44} Based on the foregoing, we reverse the judgment of the court of
appeals insofar as it failed to seal and grant protective orders concerning
Attachments 3, 4, 5, 6, 11, 14, 15, and 16 to Leslie's January 14, 2003 reply, and
Attachment I to Leslie's February 20, 2003 reply.
Cross-Appeal
{¶ 45} In his cross-appeal, Leslie contends that the court of appeals erred
in dismissing his mandamus claim.
{¶ 46} We affirm the dismissal of Leslie's claim for the following
reasons.
{¶ 47} First, Leslie did not have the requisite standing. He has shown
neither a personal stake in the outcome of his lawsuit nor a special interest in the
funds involved. State ex rel. Ohio Academy of Trial Lawyers v. Sheward (1999),
86 Ohio St.3d 451, 469, 715 N.E.2d 1062; Cleveland ex rel. O'Malley v. White,
148 Ohio App.3d 564, 2002-Ohio-3633, 774 N.E.2d 337, ¶ 34. This is also not a
"rare and extraordinary case" warranting invocation of the public-right exception
to the personal-stake requirement of standing. Ohio Academy, 86 Ohio St.3d at
503-504, 715 N.E.2d 1062; State ex rel. Ohio AFL-CIO v. Ohio Bur. of Workers'
Comp., 97 Ohio St.3d 504, 2002-Ohio-6717, 780 N.E.2d 981, ¶ 11-12.
{¶ 48} Second, as the court of appeals determined, the writ of mandamus
requested by Leslie is so broad that it would be extremely difficult to implement.
"It has been long and well established that it is the duty of every judicial tribunal
to decide actual controversies between parties legitimately affected by specific
facts and to render judgments which can be carried into effect." (Emphasis
14

January Term, 2005
added.) Fortner v. Thomas (1970), 22 Ohio St.2d 13, 14, 51 O.O.2d 35, 257
N.E.2d 371.
{¶ 49} Third, Leslie's requested relief consists of little more than future
compliance with various statutes. "[A] writ of mandamus will not issue to compel
the general observance of laws in the future." State ex rel. Kirk v. Burcham
(1998), 82 Ohio St.3d 407, 409, 696 N.E.2d 582.
{¶ 50} Fourth, Leslie's writ is an ill-disguised request for (1) a declaratory
judgment that appellants are not complying with various legal requirements and
(2) a prohibitory injunction preventing appellants from continuing these alleged
illegal practices in the future. Neither this court nor courts of appeals have
jurisdiction over these claims. State ex rel. Maloney v. Sherlock, 100 Ohio St.3d
77, 2003-Ohio-5058, 796 N.E.2d 897, ¶ 53; State ex rel. McGrath v. Ohio Adult
Parole Auth., 100 Ohio St.3d 72, 2003-Ohio-5062, 796 N.E.2d 526, ¶ 6.
Conclusion
{¶ 51} Therefore, we reverse the portion of the court of appeals' judgment
that relies on Olander and holds that the attorney-client privilege is inapplicable.
We affirm the remainder of the court of appeals' judgment.
Judgment affirmed in part
and reversed in part.

MOYER, C.J., RESNICK, PFEIFER, LUNDBERG STRATTON, O'DONNELL and
LANZINGER, JJ., concur.
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Mark A. Leslie, pro se.

Jim Petro, Attorney General, Douglas R. Cole, State Solicitor, Stephen P.
Carney, Senior Deputy Solicitor, and Sharon A. Jennings, Assistant Attorney
General, for appellants and cross-appellees.
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