The attorney-client privilege generally prohibits a lawyer from testifying on the subject of communications made to the lawyer by a client or relating to the lawyer’s advice to a client, except with the express consent of the client1. One notable exception has existed regarding certain portions of the claim file in insurance litigation where bad faith by the insurer is alleged2. However, an amendment to R.C. 2317.02 changed this exception to the attorney-client privilege doctrine, providing that the lawyer for the insurance company may only be compelled to testify regarding communications between the lawyer and the client, “that are related to the attorney’s aiding or furthering an ongoing or future commission of bad faith by the client,” subject to an in-camera inspection by a court. R.C. 2317.02(A)(2)3. Additionally, in order to invoke the exception to the attorney-client privilege, the party seeking disclosure of the disputed communication must first make a prima facie showing of bad faith, fraud, or criminal misconduct1.
Since this change in the law is relatively new, it will be interesting to see how Ohio courts will construe it. Thus, lawyers handling bad faith litigation involving insurance companies should advise their clients of this change and how it may affect access to portions of the claim file that have been discoverable in the past.