Saturday, August 24, 2002

Lawyer's reluctance resonates


She may know fate of Erica Baker

By Janice Morse, jmorse@enquirer.com
The Cincinnati Enquirer

        DAYTON, Ohio — The case of Erica Baker, a 9-year-old girl abducted while walking her dog in February 1999, has become entangled in a complex legal dilemma that could have statewide implications.

        On Monday, the Ohio 2nd District Court of Appeals will consider whether to invalidate a lower court's June 26 order to jail attorney Beth Lewis. Free pending the appeal's outcome, Ms. Lewis refused to tell a Montgomery County grand jury what, if anything, a now-deceased client may have revealed about Erica's disappearance.

Erica Baker
Erica Baker
        Prosecutors say Ms. Lewis was required to testify after her client's widower signed a waiver, activating a section of state law that says lawyers may break client confidentiality under certain conditions. But Ms. Lewis' attorneys warn that if the contempt order against Ms. Lewis is allowed to stand, there will be “serious repercussions for the entire legal community in Ohio by undermining the most basic principle of attorney-client relations.”

        For Erica's family, the legal arguments just mean more agony.

        “The client is deceased; there's nobody to protect now. (That client) isn't going to be hurt by us knowing one way or another if my daughter is with us or not with us anymore,” Erica's father, Greg, said Friday. .

        “We've been put through hell and high water for the past 3 years, and all we want is to know where Erica is,” he said.

        “This is ridiculous that they won't just give up the information.”

        Dennis Turner, a professor of law at the University of Dayton, said, “On one side, this family desperately wants this information ... (but) I could foresee a situation in which holding back the information isn't just protecting the deceased. ... Disclosure may very well cause harm to living people.”

        Mr. Turner says the case presents intriguing legal issues, but he doubts its outcome would have the widespread effects that Ms. Lewis' lawyers predict, largely because the issue of privilege of a dead client would so rarely arise.

        Still, the Ohio Association of Criminal Defense Lawyers has intervened in the case, saying, “The question before this court — "When may an attorney disclose privileged communications of a deceased client?' — is a central issue not just to criminal defense lawyers, but to all lawyers.”

        The association says the lower court's decision should be reversed because Ms. Lewis acted properly by “refusing to violate the most sacred of all attorney obligations, the attorney-client privilege.”

        Authorities haven't said what Ms. Lewis' client, Jan Marie Franks, 32, might have disclosed about Erica's disappearance before she died of a drug overdose at a Dayton homeless shelter on Dec. 30.

        But Erica's mother, Misty Baker, and grandmother, Pam Schmidt, both of Kettering, say they were trying to confirm reports — some of which were left on a hot line set up to take tips about Erica — that Ms. Franks was a passenger in a van that accidentally struck Erica. The women contacted Ms. Franks, but efforts to find out what she knew failed.

        After Ms. Franks died, Ms. Schmidt learned about the section of Ohio law that says the attorney-client privilege may be waived if a surviving spouse agrees to the disclosure, so she urged authorities to pursue that exemption.

        However, Ms. Lewis' attorneys and the defense lawyers' association question the validity of the waiver signed by Ms. Franks' husband, Shane.

        The appeals court “must address how a waiver of the attorney-client privilege can be made by an individual who does not know what is being waived,” the association argues. “All other areas of the law which permit a "waiver' require, among other facts, a "knowing' waiver, in order for the waiver to be valid.” The association asserts that there is no recorded indication that Mr. Franks knows anything about the privileged communications he seeks to waive.

        Further, the association noted a 1998 U.S. Supreme Court case that recognized several state supreme court decisions that concluded “the attorney-client privilege extends beyond the death of the client.”

        The association questions whether Ms. Franks would have made any disclosures at all if she had known they might be revealed after her death. “The record is clear that law enforcement attempted, repeatedly, to obtain information directly from Ms. Franks,” the association said. “Now, after her death, law enforcement seeks to obtain from Ms. Franks by an "end run' what they were directly refused from Ms. Franks.”

       



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