Tuesday, August 27, 2002

Confidentiality on trial in Baker case

By Janice Morse jmorse@enquirer.com
The Cincinnati Enquirer

        DAYTON, Ohio - A three-judge panel is trying to decide whether “may testify” actually means “shall testify“ in the case of an attorney who has refused to disclose what her now-deceased client may have shared about the fate of a 9-year-old girl who disappeared from her suburban neighborhood in 1999.

        A standing-room-only crowd of 44 people listened at an hour-long hearing Monday in the Ohio 2nd District Court of Appeals as lawyers made complicated legal arguments about whether Beth Lewis should be held in contempt or jailed for maintaining confidences of Jan Marie Franks, who might have said what happened to Erica Baker.

        “I have really high hopes that we're going to be able to get something good out of this,” Erica's father, Greg, said after the hearing.

        The case may hold the key to “what happened to a little girl who went out to walk her dog on a rainy Sunday and was never seen again,” said Carley Ingram, a Montgomery County assistant prosecutor.

        While an attorney's oath to keep clients' secrets often serves an important public interest, it also can deprive fact-finders of important information, Ms. Ingram pointed out.

        Further, she said, Ohio law spells out the circumstances under which that promise of confidentiality can - or must - be broken. She argued that this case meets those criteria, noting the law says if a surviving spouse executes a waiver of confidentiality, the attorney may testify. And, in this case, she argues, that means the lawyer must testify.

        But Cincinnati attorney John P. Feldmeier saw the same set of facts differently.

        “Beth Lewis is the only person alive who knows what her client's interests were with respect to those communications,“ Mr. Feldmeier argued.

        Mr. Feldmeier warned that if the lower court's decision is allowed to stand, saying Ms. Lewis ought to be compelled to disclose her client's confidences, “We've opened up the floodgates...We've inflicted uncertainty on all attorney-client relationships.“


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