By Dan Horn
The Cincinnati Enquirer

The Archdiocese of Cincinnati and its lawyers may have failed to report sexual abuse allegations despite an Ohio law that requires them to do so, Hamilton County prosecutors said Monday.

Prosecutors outlined their suspicions for the first time Monday in a legal brief filed in Common Pleas Court.

The brief is part of more than 200 pages of previously secret legal documents related to the grand jury investigation of Catholic priests accused of sexual misconduct in Greater Cincinnati.

Although the allegations against priests remain a focus of the investigation, the documents released Monday state that prosecutors also are investigating "the possible criminal concealment of those acts."

Prosecutors did not say which church officials they think may have withheld information. But under Ohio law, charges can be brought against anyone who fails to report crimes of sexual abuse.

"The archdiocese may have at times failed to comply with its duty to notify the state of its knowledge of allegations of sexual abuse of minors," Prosecutor Mike Allen stated in the brief he filed Monday. "It also appears that, with respect to those instances, the archdiocese may have in part based the decisions ... on the advice of legal counsel."

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Church lawyers said no one withheld information from authorities about possible crimes. "That's absolutely false," church attorney Mark VanderLaan said in response to Mr. Allen's brief.

The brief was filed as part of a continuing legal argument between the archdiocese and prosecutors over which church records authorities are entitled to see. Prosecutors have demanded virtually every record related to sexual abuse, while church lawyers say some of the information is protected by attorney-client privilege and should remain secret.

Mr. Allen argued Monday that the privilege between an attorney and a client does not necessarily apply because church lawyers have sometimes acted on behalf of the archdiocese as investigators in sexual-abuse cases, and not as legal counsel.

If that is true, prosecutors say, then the church may be using its claim of attorney-client privilege to withhold crucial information about cases of sexual abuse.

"Investigation files do not become privileged simply because a lawyer is involved," prosecutors stated in their brief.

Mr. VanderLaan said neither he nor anyone at his firm, Dinsmore & Shohl, has served as an investigator for the archdiocese.

"The only capacity in which we serve the archdiocese is as legal counsel," he said. "Dinsmore & Shohl has no other role in this process."

Heated debate

The dispute over the role of church lawyers is the latest in a series of heated disagreements that have arisen since prosecutors began investigating abuse allegations in April.

The investigation - one of many nationwide this year - was launched after Archbishop Daniel Pilarczyk disclosed that the 19-county archdiocese continues to employ four unidentified priests who have been accused of misconduct. Since this spring, four other priests have been suspended or taken leave because of misconduct allegations.

All of the allegations date back at least 10 years, and many cases are much older.

The material released Monday by Judge Fred Cartolano does not offer many insights into specific cases of abuse. A June letter from prosecutors to church lawyers mentions records from Catholic Social Services and from St. Joseph Orphanage in Monfort Heights, but does not elaborate on the content of those records.

The documents do reveal, however, that prosecutors and church lawyers have clashed repeatedly in recent months over the archdiocese's refusal to turn over some documents.

"The archdiocese is attempting to hide behind its position that certain documents are protected by the attorney-client privilege," prosecutors stated in a July court filing.

The brief filed Monday accused church officials of choosing to "stonewall and break agreements" rather than cooperating with authorities.

And in a June letter to church lawyers, prosecutors said: "Your explanation ... is a flat-out, after-the-fact fabrication."

Despite those accusations, the documents show that church lawyers have repeatedly argued that investigators simply are not entitled to some documents.

"The principle of confidential communication with a person's attorney is cemented in our common law, ethical rules and Ohio (law)," church lawyers stated in a June legal brief. "It is paramount that the attorney-client privilege be protected."

To help resolve the dispute, Judge Cartolano appointed Cincinnati lawyer Glenn Whitaker to serve as a "special master" who would review the documents and recommend which should be turned over.

Mr. Whitaker declined to comment Monday, but a report he issued last month concluded that many of the documents were indeed "clearly covered by an attorney-client privilege."

But his report also recommended the release of nearly 100 other documents that should be shared with prosecutors and the grand jury investigating abuse allegations. Neither prosecutors nor church lawyers would describe those documents Monday.

E-mail dhorn@enquirer.com