The question of whether Ohio should retain the waiver through voluntary testimony rule-assuming that is the current rule-is neither close nor difficult. The relevant statute dates back to the middle of the nineteenth century when Ohio enacted its first code of civil procedure, and if it in fact leads to a waiver, has been substantively unchanged in the intervening one hundred fifty plus years. The rule undermines the policies the attorney-client privilege was designed to further, and the policy on which the rule apparently was based-preventing perjured testimony-no longer has the primacy it did in the mid-nineteenth century and, in any event, is addressed in several other ways.Ohio's General Assembly would be well advised, as described in the prior section, to repeal or revise Ohio Revised Code § 2317.02(A)(1) so as to clearly disavow a rule that the mere act of a client giving voluntary testimony waives the attorney-client privilege.
David B. Alden and Matthew P. Silverstein,
Voluntary Client Testimony as a Privilege Waiver: Is Ohio's Law Caught in a Time Warp,
59 Clev. St. L. Rev.
available at http://engagedscholarship.csuohio.edu/clevstlrev/vol59/iss1/3