In This Issue

• Supreme Court Rules Government Entities May Be Liable for Interfering With Ground Water
• Ensuring Communications With Your Attorney Remain Confidential

Supreme Court Rules Government Entities May Be Liable for Interfering With Ground Water

By Jennifer L. Mackanos

A recent decision by the Supreme Court of Ohio could have substantial impact on governmental entities that drill wells or perform construction projects that affect groundwater. On December 21, 2005, the Court issued a decision in a case concerning private landowners' property interest in the groundwater under their land. In McNamara v. Rittman, 107 Ohio St.3d 243, 2005-Ohio-6433, the Court held that "Ohio landowners have a property interest in the groundwater underlying their land and that governmental interference with that right can constitute an unconstitutional taking" (emphasis supplied).

The underlying facts of the two cases that led to the decision both involved "the effect of construction by governmental entities on the water supplies of individual homeowners." In one case, the city of Rittman drilled three wells on property the city owned, causing a lowering of the neighboring landowners' aquifer and ultimately resulting in water shortages and water of poor quality. In the other case, the city of Columbus (and other entities) dug a trench that was up to 60 feet deep near the landowner's property in order to extend sewer lines. To keep groundwater from filling the trench during construction, the water was pumped out from under the property owner's land. Ultimately, this practice caused the landowner's wells to go dry. Governments will now have to fairly compensate these landowners for their losses.

This decision could potentially have a major impact on well drilling and other construction projects that could result in a landowner's wells or other underground water sources going dry or otherwise being negatively impacted. With millions of Ohioans served by water wells, the impact of this decision may be significant for government taxpayers. Part of the planning process on any well drilling or construction project undertaken by a governmental entity should include care and thought regarding groundwater issues.

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Ensuring Communications With Your Attorney Remain Confidential

By Katherine Connor Ferguson

The attorney-client privilege is one of the oldest recognized privileges for confidential communications in our legal system. The privilege ensures that attorney-client communications remain confidential and thereby promotes free and candid exchanges of information between a client and his or her attorney. (footnote 1) The legal system recognizes that such confidentiality is essential to our adversarial justice system. By enabling clients to disclose facts to their attorneys without the fear of those facts being used against them, attorneys are more likely to be fully-informed and better able to advise and to advocate for their clients than if the privilege were not available.

Since the privilege is designed to encourage clients to disclose all relevant facts to their clients, the protection afforded by the privilege belongs to the client, not the attorney. Thus, only the client can waive this protection. Given the importance of the privilege, clients should understand which communications fall within the scope of the privilege's protection and how to ensure their privileged communications remain privileged.

Scope of the Attorney-Client Privilege

The attorney-client privilege only protects communications between a client (or prospective client) and his or her attorney(s). Further, the communication must have been made for the purpose of giving or seeking legal advice. The essential elements of a privileged communication are as follows:

• The oral or written communication took place between an attorney and his or her client (or prospective client);

• The communication was made for the purpose of obtaining and/or giving legal advice or counsel;

• The communication was made in confidence, outside the presence of uninterested third parties. The presence of either the client's or the attorney's agents will not destroy the privilege - for example, secretaries, paralegals, translators, etc.

Preserving the Confidentiality of Privileged Communication

As previously stated, only the client may waive protection of the privilege. This waiver may occur intentionally or accidentally. Once the privilege is waived, the communication is no longer protected from disclosure. Thus, it is important for clients to know the following essential facts concerning a waiver:

• The privilege only protects confidential attorney-client communications in connection with the giving and/or receiving legal advice. For example, it would not protect a conversation between you and your attorney regarding the previous night's ball game and the like.

• If a client discloses the nature of his attorney-client communications to a third party, the privilege will be lost. Resist the urge to share your attorney's thoughts and advice with uninterested (i.e. not directly affected by the matter at issue) friends, neighbors and co-workers.

• If the communication between the client and the attorney takes place in an environment where it is likely to be overheard, the privilege arguably will NOT apply, even if the client believed the communication was confidential and it related to legal advice.

• The privilege survives the death of the client. After a client's death, only the spouse of the deceased may waive the privilege on his of her behalf.

The attorney-client privilege serves an essential role in our legal system and in the attorney-client relationship. Clients must understand the scope and limits of the privilege so that they may take full advantage of its protection and preserve it.

Footnote 1: Upjohn Co. v. United States (1981), 449 U.S. 383, 389.

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