dissenting.
{¶ 79} I must respectfully dissent. The parties have ignored the language from R.C. 2317.02(A) that resolves this appeal. The disputed “may” language in the statute preserves the trial court’s discretion to determine whether to admit the attorney’s testimony, once the waiver threshold has been crossed. It has no bearing on determining by whom the privilege may be waived. The controlling statutory language provides that either the surviving spouse or the executor of the decedent’s estate is entitled to waive the privilege on behalf of the deceased client. And, as the statute is written, the surviving spouse and the executor stand on equal footing with respect to that authority. As both the surviving spouse and the executor here seek to exercise that authority, the trial court must determine which party will control the waiver, and it failed to do so.
{¶ 80} The trial court correctly held that the privilege is the client’s, not the attorney’s, and that R.C. 2317.02(A) is the exclusive means by which the attorney-client privilege may be waived. It also correctly concluded that the surviving spouse may waive the privilege for their deceased spouse and that there is no statutory language limiting the scope of that waiver. However, the disputed issue remains: Where two persons are equally entitled by statute to control the attorney-client privilege for the decedent and each seek that authority, who controls the privilege?
{¶ 81} Doe is instructive as it clearly resolves that the privilege is never the attorney’s to waive and provides guidance as to the scope of the authority of those statutorily entitled to exercise the waiver on behalf of their decedent. State v. Doe, 101 Ohio St.3d 170, 2004-Ohio-705, 803 N.E.2d 777. However, there is a significant fact that makes Doe distinguishable from this case: who was asserting control over the privilege. In Doe, it was the decedent’s surviving spouse, who was authorized by the statute to control the privilege, and the decedent’s attorney, who was not. Here, the parties asserting control over the privilege are both authorized to do so by R.C. 2317.02(A). Thus, the Supreme Court’s decision in Doe left open the question we have before us: how to determine who has control over the waiver, the surviving spouse or the executor.
{¶ 82} Nonetheless, the Second District’s equal-footing language in Doe is instructive with respect to resolving this question. In Doe, the Second District held that because R.C. 2317.02(A) contained no limiting language, the decision of the surviving spouse with respect to waiver stood on equal footing to any decision the decedent could have made. State v. Doe, 2d Dist. No. 19408, 2002-Ohio-4966, 2002 WL 31105389, at ¶ 11. Similarly, as there is neither limiting nor prioritizing *437language differentiating between a surviving spouse and an executor, I conclude that a plain reading of the statute dictates that they likewise stand on equal footing with respect to being entitled to control a decedent’s waiver of the attorney-client privilege.
{¶ 83} The Second District hinted at this conclusion in Doe:
{¶ 84} “Moreover, the structure of the statute gives equal effect to the client’s own consent and to the consent of the surviving spouse or representative * * Doe, 2002-Ohio-4966, 2002 WL 31105389, ¶ 15.
{¶ 85} And:
{¶ 86} “Although we may question the wisdom of allowing a surviving spouse or representative to waive the attorney-client privilege in non-testamentary matters, we are not in a position to substitute our judgment for that of the legislature, and we must presume that the statute, as written, embodies the legislature’s public policy determinations.” Id. at ¶ 16.
{¶ 87} As both parties stand on equal footing statutorily, it is left to the discretion of the trial court to determine which party will control the privilege. This is not a court invading the province of the legislature as cautioned against by Doe. As in other areas of the law, when the legislature gives a trial court statutory alternatives, it is within the discretion of the trial court, based upon the facts before it, to choose one of those alternatives. And on appeal, the question becomes whether the trial court abused its discretion in making its choice between statutorily designated alternatives. This is a decision clearly within the province of the judicial branch.
{¶ 88} Here, we cannot review whether or not the trial court abused its discretion, because it did not exercise its discretion. The trial court disregarded that the exclusive means to waive the attorney-client privilege, R.C. 2317.02(A), also entitles the executor of decedent’s estate to exercise control over the waiver. Instead, it merely made partial statements of the law with respect to waiver of the attorney-client privilege without fully analyzing the statutory language, and it failed to choose one of the two parties, who are equally entitled by the statute, to control the waiver.
{¶ 89} Accordingly, I would reverse the judgment of the trial court and remand the matter to determine whether the surviving spouse or the executor shall control the decedent’s attorney-client privilege.