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STATE v. McDERMOTT
72 Ohio St.3d 570 (1995)
THE STATE OF OHIO, APPELLANT,
v.
McDERMOTT; LAWRENCE, APPELLEE.
No. 94-461.
Supreme Court of Ohio.
Submitted April 4, 1995.
Decided July 26, 1995.
Anthony G. Pizza, Lucas County Prosecuting Attorney, and J. Christopher Anderson, Assistant Prosecuting Attorney, for appellant.
Cooper, Walinski & Cramer and Richard Walinski; Kaplan, Richardson, Rost & Helmick and Jon D. Richardson, for appellee.
Harvey B. Bruner & Associates, Harvey B. Bruner and Bret Jordan, urging affirmance for amicus curiae, Ohio Academy of Trial Lawyers.
Squire, Sanders & Dempsey and Terri-Lynne B. Smiles, urging affirmance for amicus curiae, Ohio State Medical Association.
Kaplan & Lipson and Samuel Z. Kaplan; David H. Bodiker, Ohio Public Defender, Gloria Eyerly and Barbara Farnbacher, Assistant Public Defenders, urging affirmance for amici curiae, Ohio Association of Criminal Defense Lawyers and Office of the Ohio Public Defender.
Charles G. Hallinan; Dinsmore & Shohl and Mark A Vander Loan; Shumaker, Loop & Kendrick and Thomas G. Pletz, urging affirmance for amici curiae, Catholic Archdiocese of Cincinnati, Daniel E. Pilarczyk, Archbishop, and Catholic Diocese of Toledo.
Albert L. Bell and Eugene P. Whetzel, urging affirmance for amicus curiae, Ohio State Bar Association.
COOK, J. In Ohio, attorneys, as well as other professionals, have presumed that professional discussions with clients may not later be the subject of testimony by that professional, even when the client has told a third person what was discussed. A contrary view, however, is apparent from paragraph one of the syllabus of State v. Post (1987), 32 Ohio St.3d 380, 513 N.E.2d 754, which reads: "[a] client's disclosure to a third party of communications made pursuant to the attorney-client privilege breaches the confidentiality underlying the privilege, and constitutes a waiver thereof." Due to what we now judge to be its overbreadth, we modify, as far as it is inconsistent with our opinion today, the waiver proposition of the Post syllabus. Instead, we follow Swetland v. Miles (1920), 101 Ohio St. 501, 504, 130 N.E. 22, 23, where this court held that the Ohio statute on privileged communication (now R.C. 2317.02) evinced the sole criteria for waiving the privilege: (1) the client expressly consents, or (2) the client voluntarily testifies on the same subject. In Swetland, this court analyzed G.C. 11494, the predecessor to R.C. 2317.02. The appellant requested that the court judicially extend the statute to provide for an additional waiver of the testimonial privilege. Although that statute provided only two circumstances by which the client could waive the privilege, the client's express consent or the client's testifying on the same subject, the appellant urged the court to adopt the further exception of allowing the client's personal representative or heirs to waive the privilege when the client is deceased. As the language of the statute was comprehensive, this court ruled that the General Assembly may broaden the statutory exceptions which constituted waiver of the privileged communications but that the courts should not augment the enumerated
waivers.1 "The argument addressed to this court might be addressed to the legislature with persuasive power * * * but it is not for this court to make such an amendment." Id., 101 Ohio St. at 504-505, 130 N.E. at 23. The General Assembly has plainly and distinctly stated that the privileges of R.C. 2317.02 are to be given effect absent specific statutory exceptions. State v. Smorgala (1990), 50 Ohio St.3d 222, 223, 553 N.E.2d 672, 674. See, also, State ex rel. Lambdin v. Brenton (1970), 21 Ohio St.2d 21, 24, 50 O.O.2d 44, 46, 254 N.E.2d 681, 683. We believe that the reasoning in Swetland applies equally well to the state's contention in this case. The state, however, contends that it is our decision in Post which controls. In Post, an attorney employed a polygraph examiner as his agent. The client of the attorney submitted to a polygraph examination without his attorney present, and in the course of the examination, confessed in writing to a crime. The client later told a third party about his confession to the polygraph examiner. The trial court ruled that the written statement as well as the polygraph examiner's testimony was admissible because the client's disclosure to the third party waived any privilege. The client appealed, asserting that the polygraph examiner's testimony should not have been allowed into evidence. This court found the client's discussion with the polygraph examiner privileged but also found that privilege waived when the client revealed the content of the privileged communication to a third party. At common law, the attorney-client privilege could be waived either expressly or by conduct implying waiver. See 8 Wigmore, Evidence (McNaughton Rev.1961), Section 2327. The statute that controls the case before us is R.C. 2317.02(A), which states: "The following persons shall not testify in certain respects:
1. The legislature subsequently modified the statute to include waiver by the "surviving spouse or the executor or administrator of the estate of the deceased client." 125 Ohio Laws 313. 2. While this court's opinion in Post does not clearly indicate whether the defendant's attorney was present at this confession, the defendant's brief to this court in Post stated that the attorney was not present.
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