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Disclosure case stays in federal court



Published: Sat, January 29, 2005 @ 12:00 a.m.



A lawyer refuses to break attorney-client privilege even though the client is deceased.

DAYTON (AP) -- A federal judge on Friday rejected Ohio's bid to take control of a case over whether a lawyer must disclose what a now-dead client may have told her about a 9-year-old girl's disappearance.

U.S. District Court Judge Walter Rice said he will hear the case involving former federal public defender Beth Lewis and will schedule a hearing on the matter before March 1.

Had Rice allowed the case to return to state court, Lewis could have gone to jail because she has been found in contempt for refusing to answer a grand jury's questions about what her client, Jan Franks, may have told her about the disappearance of Erica Baker.

Erica disappeared in 1999 while walking her dog in suburban Kettering. No one has been charged. According to a court document, police received information that indicated Franks and other people may have been in a van that struck and killed the girl.

After Franks died of a drug overdose in 2001, her husband waived her attorney-client privilege and gave Lewis permission to disclose any information. Lewis refused to answer grand jury questions, and a judge held her in contempt in 2002. The court delayed imposing any sentence during her appeals.

Ohio is one of the few states that allow a surviving spouse to give permission for an attorney to reveal privileged conversations between lawyers and clients. Lewis has argued that allowing clients' discussions to be disclosed after their deaths would keep them from being forthcoming with their attorneys.

State or federal court

State prosecutors argue that Lewis should not be allowed to take her case to federal court to argue the same issues or raise defenses not previously raised in state court.

But Rice said Lewis' transfer of the case to federal court did not violate any filing deadline and that he has jurisdiction because the state court has not rendered final judgment in the case.

Rice said he presumes that Lewis will argue that the federal version of attorney-client privilege -- as opposed to Ohio's version -- should be applied in her case.

Rice said that if he decides Ohio law prevents Lewis from raising that issue, he will not conclude that federal attorney-client privilege protects Lewis from being required to disclose the conversations she had with Franks.




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