As Introduced

127th General Assembly Regular Session 2007-2008

H. B. No. 578

Representative Batchelder 

Cosponsors: Representatives Schindel, Evans, Stewart, J., Boyd, Patton, Stebelton, Setzer, Mecklenborg, Harwood, Slesnick, Szollosi, Bolon, Newcomb 

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A BILL

To amend section 2317.02 of the Revised Code to

1

create an accountant-client testimonial privilege.

2

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That section 2317.02 of the Revised Code be	3
amended to read as follows:	4

Sec. 2317.02.  The following persons shall not testify in	5
certain respects:	6

(A)(1) An attorney, concerning a communication made to the	7
attorney by a client in that relation or the attorney's advice to	8
a client, except that the attorney may testify by express consent	9
of the client or, if the client is deceased, by the express	10
consent of the surviving spouse or the executor or administrator	11
of the estate of the deceased client. However, if the client	12
voluntarily testifies or is deemed by section 2151.421 of the	13
Revised Code to have waived any testimonial privilege under this	14
division, the attorney may be compelled to testify on the same	15
subject.	16

The testimonial privilege established under this division	17
does not apply concerning a communication between a client who has	18
since died and the deceased client's attorney if the communication	19
is relevant to a dispute between parties who claim through that	20
deceased client, regardless of whether the claims are by testate	21
or intestate succession or by inter vivos transaction, and the	22
dispute addresses the competency of the deceased client when the	23
deceased client executed a document that is the basis of the	24
dispute or whether the deceased client was a victim of fraud,	25
undue influence, or duress when the deceased client executed a	26
document that is the basis of the dispute.	27

(2) An attorney, concerning a communication made to the	28
attorney by a client in that relationship or the attorney's advice	29
to a client, except that if the client is an insurance company,	30
the attorney may be compelled to testify, subject to an in camera	31
inspection by a court, about communications made by the client to	32
the attorney or by the attorney to the client that are related to	33
the attorney's aiding or furthering an ongoing or future	34
commission of bad faith by the client, if the party seeking	35
disclosure of the communications has made a prima facie showing of	36
bad faith, fraud, or criminal misconduct by the client.	37

(B)(1) A physician or a dentist concerning a communication	38
made to the physician or dentist by a patient in that relation or	39
the physician's or dentist's advice to a patient, except as	40
otherwise provided in this division, division (B)(2), and division	41
(B)(3) of this section, and except that, if the patient is deemed	42
by section 2151.421 of the Revised Code to have waived any	43
testimonial privilege under this division, the physician may be	44
compelled to testify on the same subject.	45

The testimonial privilege established under this division	46
does not apply, and a physician or dentist may testify or may be	47
compelled to testify, in any of the following circumstances:	48

(a) In any civil action, in accordance with the discovery	49
provisions of the Rules of Civil Procedure in connection with a	50
civil action, or in connection with a claim under Chapter 4123. of	51
the Revised Code, under any of the following circumstances:	52

(i) If the patient or the guardian or other legal	53
representative of the patient gives express consent;	54

(ii) If the patient is deceased, the spouse of the patient or	55
the executor or administrator of the patient's estate gives	56
express consent;	57

(iii) If a medical claim, dental claim, chiropractic claim,	58
or optometric claim, as defined in section 2305.113 of the Revised	59
Code, an action for wrongful death, any other type of civil	60
action, or a claim under Chapter 4123. of the Revised Code is	61
filed by the patient, the personal representative of the estate of	62
the patient if deceased, or the patient's guardian or other legal	63
representative.	64

(b) In any civil action concerning court-ordered treatment or	65
services received by a patient, if the court-ordered treatment or	66
services were ordered as part of a case plan journalized under	67
section 2151.412 of the Revised Code or the court-ordered	68
treatment or services are necessary or relevant to dependency,	69
neglect, or abuse or temporary or permanent custody proceedings	70
under Chapter 2151. of the Revised Code.	71

(c) In any criminal action concerning any test or the results	72
of any test that determines the presence or concentration of	73
alcohol, a drug of abuse, a combination of them, a controlled	74
substance, or a metabolite of a controlled substance in the	75
patient's whole blood, blood serum or plasma, breath, urine, or	76
other bodily substance at any time relevant to the criminal	77
offense in question.	78

(d) In any criminal action against a physician or dentist. In	79
such an action, the testimonial privilege established under this	80
division does not prohibit the admission into evidence, in	81
accordance with the Rules of Evidence, of a patient's medical or	82
dental records or other communications between a patient and the	83
physician or dentist that are related to the action and obtained	84
by subpoena, search warrant, or other lawful means. A court that	85
permits or compels a physician or dentist to testify in such an	86
action or permits the introduction into evidence of patient	87
records or other communications in such an action shall require	88
that appropriate measures be taken to ensure that the	89
confidentiality of any patient named or otherwise identified in	90
the records is maintained. Measures to ensure confidentiality that	91
may be taken by the court include sealing its records or deleting	92
specific information from its records.	93

(e)(i) If the communication was between a patient who has	94
since died and the deceased patient's physician or dentist, the	95
communication is relevant to a dispute between parties who claim	96
through that deceased patient, regardless of whether the claims	97
are by testate or intestate succession or by inter vivos	98
transaction, and the dispute addresses the competency of the	99
deceased patient when the deceased patient executed a document	100
that is the basis of the dispute or whether the deceased patient	101
was a victim of fraud, undue influence, or duress when the	102
deceased patient executed a document that is the basis of the	103
dispute.	104

(ii) If neither the spouse of a patient nor the executor or	105
administrator of that patient's estate gives consent under	106
division (B)(1)(a)(ii) of this section, testimony or the	107
disclosure of the patient's medical records by a physician,	108
dentist, or other health care provider under division (B)(1)(e)(i)	109
of this section is a permitted use or disclosure of protected	110
health information, as defined in 45 C.F.R. 160.103, and an	111
authorization or opportunity to be heard shall not be required.	112

(iii) Division (B)(1)(e)(i) of this section does not require	113
a mental health professional to disclose psychotherapy notes, as	114
defined in 45 C.F.R. 164.501.	115

(iv) An interested person who objects to testimony or	116
disclosure under division (B)(1)(e)(i) of this section may seek a	117
protective order pursuant to Civil Rule 26.	118

(v) A person to whom protected health information is	119
disclosed under division (B)(1)(e)(i) of this section shall not	120
use or disclose the protected health information for any purpose	121
other than the litigation or proceeding for which the information	122
was requested and shall return the protected health information to	123
the covered entity or destroy the protected health information,	124
including all copies made, at the conclusion of the litigation or	125
proceeding.	126

(2)(a) If any law enforcement officer submits a written	127
statement to a health care provider that states that an official	128
criminal investigation has begun regarding a specified person or	129
that a criminal action or proceeding has been commenced against a	130
specified person, that requests the provider to supply to the	131
officer copies of any records the provider possesses that pertain	132
to any test or the results of any test administered to the	133
specified person to determine the presence or concentration of	134
alcohol, a drug of abuse, a combination of them, a controlled	135
substance, or a metabolite of a controlled substance in the	136
person's whole blood, blood serum or plasma, breath, or urine at	137
any time relevant to the criminal offense in question, and that	138
conforms to section 2317.022 of the Revised Code, the provider,	139
except to the extent specifically prohibited by any law of this	140
state or of the United States, shall supply to the officer a copy	141
of any of the requested records the provider possesses. If the	142
health care provider does not possess any of the requested	143
records, the provider shall give the officer a written statement	144
that indicates that the provider does not possess any of the	145
requested records.	146

(b) If a health care provider possesses any records of the	147
type described in division (B)(2)(a) of this section regarding the	148
person in question at any time relevant to the criminal offense in	149
question, in lieu of personally testifying as to the results of	150
the test in question, the custodian of the records may submit a	151
certified copy of the records, and, upon its submission, the	152
certified copy is qualified as authentic evidence and may be	153
admitted as evidence in accordance with the Rules of Evidence.	154
Division (A) of section 2317.422 of the Revised Code does not	155
apply to any certified copy of records submitted in accordance	156
with this division. Nothing in this division shall be construed to	157
limit the right of any party to call as a witness the person who	158
administered the test to which the records pertain, the person	159
under whose supervision the test was administered, the custodian	160
of the records, the person who made the records, or the person	161
under whose supervision the records were made.	162

(3)(a) If the testimonial privilege described in division	163
(B)(1) of this section does not apply as provided in division	164
(B)(1)(a)(iii) of this section, a physician or dentist may be	165
compelled to testify or to submit to discovery under the Rules of	166
Civil Procedure only as to a communication made to the physician	167
or dentist by the patient in question in that relation, or the	168
physician's or dentist's advice to the patient in question, that	169
related causally or historically to physical or mental injuries	170
that are relevant to issues in the medical claim, dental claim,	171
chiropractic claim, or optometric claim, action for wrongful	172
death, other civil action, or claim under Chapter 4123. of the	173
Revised Code.	174

(b) If the testimonial privilege described in division (B)(1)	175
of this section does not apply to a physician or dentist as	176
provided in division (B)(1)(c) of this section, the physician or	177
dentist, in lieu of personally testifying as to the results of the	178
test in question, may submit a certified copy of those results,	179
and, upon its submission, the certified copy is qualified as	180
authentic evidence and may be admitted as evidence in accordance	181
with the Rules of Evidence. Division (A) of section 2317.422 of	182
the Revised Code does not apply to any certified copy of results	183
submitted in accordance with this division. Nothing in this	184
division shall be construed to limit the right of any party to	185
call as a witness the person who administered the test in	186
question, the person under whose supervision the test was	187
administered, the custodian of the results of the test, the person	188
who compiled the results, or the person under whose supervision	189
the results were compiled.	190

(4) The testimonial privilege described in division (B)(1) of	191
this section is not waived when a communication is made by a	192
physician to a pharmacist or when there is communication between a	193
patient and a pharmacist in furtherance of the physician-patient	194
relation.	195

(5)(a) As used in divisions (B)(1) to (4) of this section,	196
"communication" means acquiring, recording, or transmitting any	197
information, in any manner, concerning any facts, opinions, or	198
statements necessary to enable a physician or dentist to diagnose,	199
treat, prescribe, or act for a patient. A "communication" may	200
include, but is not limited to, any medical or dental, office, or	201
hospital communication such as a record, chart, letter,	202
memorandum, laboratory test and results, x-ray, photograph,	203
financial statement, diagnosis, or prognosis.	204

(b) As used in division (B)(2) of this section, "health care	205
provider" means a hospital, ambulatory care facility, long-term	206
care facility, pharmacy, emergency facility, or health care	207
practitioner.	208

(c) As used in division (B)(5)(b) of this section:

209

(i) "Ambulatory care facility" means a facility that provides	210
medical, diagnostic, or surgical treatment to patients who do not	211
require hospitalization, including a dialysis center, ambulatory	212
surgical facility, cardiac catheterization facility, diagnostic	213
imaging center, extracorporeal shock wave lithotripsy center, home	214
health agency, inpatient hospice, birthing center, radiation	215
therapy center, emergency facility, and an urgent care center.	216
"Ambulatory health care facility" does not include the private	217
office of a physician or dentist, whether the office is for an	218
individual or group practice.	219

(ii) "Emergency facility" means a hospital emergency	220
department or any other facility that provides emergency medical	221
services.	222

(iii) "Health care practitioner" has the same meaning as in	223
section 4769.01 of the Revised Code.	224

(iv) "Hospital" has the same meaning as in section 3727.01 of	225
the Revised Code.	226

(v) "Long-term care facility" means a nursing home,	227
residential care facility, or home for the aging, as those terms	228
are defined in section 3721.01 of the Revised Code; an adult care	229
facility, as defined in section 3722.01 of the Revised Code; a	230
nursing facility or intermediate care facility for the mentally	231
retarded, as those terms are defined in section 5111.20 of the	232
Revised Code; a facility or portion of a facility certified as a	233
skilled nursing facility under Title XVIII of the "Social Security	234
Act," 49 Stat. 286 (1965), 42 U.S.C.A. 1395, as amended.	235

(vi) "Pharmacy" has the same meaning as in section 4729.01 of	236
the Revised Code.	237

(d) As used in divisions (B)(1) and (2) of this section,	238
"drug of abuse" has the same meaning as in section 4506.01 of the	239
Revised Code.	240

(6) Divisions (B)(1), (2), (3), (4), and (5) of this section	241
apply to doctors of medicine, doctors of osteopathic medicine,	242
doctors of podiatry, and dentists.	243

(7) Nothing in divisions (B)(1) to (6) of this section	244
affects, or shall be construed as affecting, the immunity from	245
civil liability conferred by section 307.628 of the Revised Code	246
or the immunity from civil liability conferred by section 2305.33	247
of the Revised Code upon physicians who report an employee's use	248
of a drug of abuse, or a condition of an employee other than one	249
involving the use of a drug of abuse, to the employer of the	250
employee in accordance with division (B) of that section. As used	251
in division (B)(7) of this section, "employee," "employer," and	252
"physician" have the same meanings as in section 2305.33 of the	253
Revised Code.	254

(C)(1) A cleric, when the cleric remains accountable to the	255
authority of that cleric's church, denomination, or sect,	256
concerning a confession made, or any information confidentially	257
communicated, to the cleric for a religious counseling purpose in	258
the cleric's professional character. The cleric may testify by	259
express consent of the person making the communication, except	260
when the disclosure of the information is in violation of a sacred	261
trust and except that, if the person voluntarily testifies or is	262
deemed by division (A)(4)(c) of section 2151.421 of the Revised	263
Code to have waived any testimonial privilege under this division,	264
the cleric may be compelled to testify on the same subject except	265
when disclosure of the information is in violation of a sacred	266
trust.	267

(2) As used in division (C) of this section:

268

(a) "Cleric" means a member of the clergy, rabbi, priest,	269
Christian Science practitioner, or regularly ordained, accredited,	270
or licensed minister of an established and legally cognizable	271
church, denomination, or sect.	272

(b) "Sacred trust" means a confession or confidential	273
communication made to a cleric in the cleric's ecclesiastical	274
capacity in the course of discipline enjoined by the church to	275
which the cleric belongs, including, but not limited to, the	276
Catholic Church, if both of the following apply:	277

(i) The confession or confidential communication was made	278
directly to the cleric.	279

(ii) The confession or confidential communication was made in	280
the manner and context that places the cleric specifically and	281
strictly under a level of confidentiality that is considered	282
inviolate by canon law or church doctrine.	283

(D) Husband or wife, concerning any communication made by one	284
to the other, or an act done by either in the presence of the	285
other, during coverture, unless the communication was made, or act	286
done, in the known presence or hearing of a third person competent	287
to be a witness; and such rule is the same if the marital relation	288
has ceased to exist;	289

(E) A person who assigns a claim or interest, concerning any	290
matter in respect to which the person would not, if a party, be	291
permitted to testify;	292

(F) A person who, if a party, would be restricted under	293
section 2317.03 of the Revised Code, when the property or thing is	294
sold or transferred by an executor, administrator, guardian,	295
trustee, heir, devisee, or legatee, shall be restricted in the	296
same manner in any action or proceeding concerning the property or	297
thing.	298

(G)(1) A school guidance counselor who holds a valid educator	299
license from the state board of education as provided for in	300
section 3319.22 of the Revised Code, a person licensed under	301
Chapter 4757. of the Revised Code as a professional clinical	302
counselor, professional counselor, social worker, independent	303
social worker, marriage and family therapist or independent	304
marriage and family therapist, or registered under Chapter 4757.	305
of the Revised Code as a social work assistant concerning a	306
confidential communication received from a client in that relation	307
or the person's advice to a client unless any of the following	308
applies:	309

(a) The communication or advice indicates clear and present	310
danger to the client or other persons. For the purposes of this	311
division, cases in which there are indications of present or past	312
child abuse or neglect of the client constitute a clear and	313
present danger.	314

(b) The client gives express consent to the testimony.

315

(c) If the client is deceased, the surviving spouse or the	316
executor or administrator of the estate of the deceased client	317
gives express consent.	318

(d) The client voluntarily testifies, in which case the	319
school guidance counselor or person licensed or registered under	320
Chapter 4757. of the Revised Code may be compelled to testify on	321
the same subject.	322

(e) The court in camera determines that the information	323
communicated by the client is not germane to the counselor-client,	324
marriage and family therapist-client, or social worker-client	325
relationship.	326

(f) A court, in an action brought against a school, its	327
administration, or any of its personnel by the client, rules after	328
an in-camera inspection that the testimony of the school guidance	329
counselor is relevant to that action.	330

(g) The testimony is sought in a civil action and concerns	331
court-ordered treatment or services received by a patient as part	332
of a case plan journalized under section 2151.412 of the Revised	333
Code or the court-ordered treatment or services are necessary or	334
relevant to dependency, neglect, or abuse or temporary or	335
permanent custody proceedings under Chapter 2151. of the Revised	336
Code.	337

(2) Nothing in division (G)(1) of this section shall relieve	338
a school guidance counselor or a person licensed or registered	339
under Chapter 4757. of the Revised Code from the requirement to	340
report information concerning child abuse or neglect under section	341
2151.421 of the Revised Code.	342

(H) A mediator acting under a mediation order issued under	343
division (A) of section 3109.052 of the Revised Code or otherwise	344
issued in any proceeding for divorce, dissolution, legal	345
separation, annulment, or the allocation of parental rights and	346
responsibilities for the care of children, in any action or	347
proceeding, other than a criminal, delinquency, child abuse, child	348
neglect, or dependent child action or proceeding, that is brought	349
by or against either parent who takes part in mediation in	350
accordance with the order and that pertains to the mediation	351
process, to any information discussed or presented in the	352
mediation process, to the allocation of parental rights and	353
responsibilities for the care of the parents' children, or to the	354
awarding of parenting time rights in relation to their children;	355

(I) A communications assistant, acting within the scope of	356
the communication assistant's authority, when providing	357
telecommunications relay service pursuant to section 4931.35 of	358
the Revised Code or Title II of the "Communications Act of 1934,"	359
104 Stat. 366 (1990), 47 U.S.C. 225, concerning a communication	360
made through a telecommunications relay service. Nothing in this	361
section shall limit the obligation of a communications assistant	362
to divulge information or testify when mandated by federal law or	363
regulation or pursuant to subpoena in a criminal proceeding.	364

Nothing in this section shall limit any immunity or privilege	365
granted under federal law or regulation.	366

(J)(1) A chiropractor in a civil proceeding concerning a	367
communication made to the chiropractor by a patient in that	368
relation or the chiropractor's advice to a patient, except as	369
otherwise provided in this division. The testimonial privilege	370
established under this division does not apply, and a chiropractor	371
may testify or may be compelled to testify, in any civil action,	372
in accordance with the discovery provisions of the Rules of Civil	373
Procedure in connection with a civil action, or in connection with	374
a claim under Chapter 4123. of the Revised Code, under any of the	375
following circumstances:	376

(a) If the patient or the guardian or other legal	377
representative of the patient gives express consent.	378

(b) If the patient is deceased, the spouse of the patient or	379
the executor or administrator of the patient's estate gives	380
express consent.	381

(c) If a medical claim, dental claim, chiropractic claim, or	382
optometric claim, as defined in section 2305.113 of the Revised	383
Code, an action for wrongful death, any other type of civil	384
action, or a claim under Chapter 4123. of the Revised Code is	385
filed by the patient, the personal representative of the estate of	386
the patient if deceased, or the patient's guardian or other legal	387
representative.	388

(2) If the testimonial privilege described in division (J)(1)	389
of this section does not apply as provided in division (J)(1)(c)	390
of this section, a chiropractor may be compelled to testify or to	391
submit to discovery under the Rules of Civil Procedure only as to	392
a communication made to the chiropractor by the patient in	393
question in that relation, or the chiropractor's advice to the	394
patient in question, that related causally or historically to	395
physical or mental injuries that are relevant to issues in the	396
medical claim, dental claim, chiropractic claim, or optometric	397
claim, action for wrongful death, other civil action, or claim	398
under Chapter 4123. of the Revised Code.	399

(3) The testimonial privilege established under this division	400
does not apply, and a chiropractor may testify or be compelled to	401
testify, in any criminal action or administrative proceeding.	402

(4) As used in this division, "communication" means	403
acquiring, recording, or transmitting any information, in any	404
manner, concerning any facts, opinions, or statements necessary to	405
enable a chiropractor to diagnose, treat, or act for a patient. A	406
communication may include, but is not limited to, any	407
chiropractic, office, or hospital communication such as a record,	408
chart, letter, memorandum, laboratory test and results, x-ray,	409
photograph, financial statement, diagnosis, or prognosis.	410

(K)(1) Except as provided under division (K)(2) of this	411
section, a critical incident stress management team member	412
concerning a communication received from an individual who	413
receives crisis response services from the team member, or the	414
team member's advice to the individual, during a debriefing	415
session.	416

(2) The testimonial privilege established under division	417
(K)(1) of this section does not apply if any of the following are	418
true:	419

(a) The communication or advice indicates clear and present	420
danger to the individual who receives crisis response services or	421
to other persons. For purposes of this division, cases in which	422
there are indications of present or past child abuse or neglect of	423
the individual constitute a clear and present danger.	424

(b) The individual who received crisis response services	425
gives express consent to the testimony.	426

(c) If the individual who received crisis response services	427
is deceased, the surviving spouse or the executor or administrator	428
of the estate of the deceased individual gives express consent.	429

(d) The individual who received crisis response services	430
voluntarily testifies, in which case the team member may be	431
compelled to testify on the same subject.	432

(e) The court in camera determines that the information	433
communicated by the individual who received crisis response	434
services is not germane to the relationship between the individual	435
and the team member.	436

(f) The communication or advice pertains or is related to any	437
criminal act.	438

(3) As used in division (K) of this section:

439

(a) "Crisis response services" means consultation, risk	440
assessment, referral, and on-site crisis intervention services	441
provided by a critical incident stress management team to	442
individuals affected by crisis or disaster.	443

(b) "Critical incident stress management team member" or	444
"team member" means an individual specially trained to provide	445
crisis response services as a member of an organized community or	446
local crisis response team that holds membership in the Ohio	447
critical incident stress management network.	448

(c) "Debriefing session" means a session at which crisis	449
response services are rendered by a critical incident stress	450
management team member during or after a crisis or disaster.	451

(L)(1) Subject to division (L)(2) of this section and except	452
as provided in division (L)(3) of this section, an employee	453
assistance professional, concerning a communication made to the	454
employee assistance professional by a client in the employee	455
assistance professional's official capacity as an employee	456
assistance professional.	457

(2) Division (L)(1) of this section applies to an employee	458
assistance professional who meets either or both of the following	459
requirements:	460

(a) Is certified by the employee assistance certification	461
commission to engage in the employee assistance profession;	462

(b) Has education, training, and experience in all of the	463
following:	464

(i) Providing workplace-based services designed to address	465
employer and employee productivity issues;	466

(ii) Providing assistance to employees and employees'	467
dependents in identifying and finding the means to resolve	468
personal problems that affect the employees or the employees'	469
performance;	470

(iii) Identifying and resolving productivity problems	471
associated with an employee's concerns about any of the following	472
matters: health, marriage, family, finances, substance abuse or	473
other addiction, workplace, law, and emotional issues;	474

(iv) Selecting and evaluating available community resources;

475

(v) Making appropriate referrals;

476

(vi) Local and national employee assistance agreements;

477

(vii) Client confidentiality.

478

(3) Division (L)(1) of this section does not apply to any of	479
the following:	480

(a) A criminal action or proceeding involving an offense	481
under sections 2903.01 to 2903.06 of the Revised Code if the	482
employee assistance professional's disclosure or testimony relates	483
directly to the facts or immediate circumstances of the offense;	484

(b) A communication made by a client to an employee	485
assistance professional that reveals the contemplation or	486
commission of a crime or serious, harmful act;	487

(c) A communication that is made by a client who is an	488
unemancipated minor or an adult adjudicated to be incompetent and	489
indicates that the client was the victim of a crime or abuse;	490

(d) A civil proceeding to determine an individual's mental	491
competency or a criminal action in which a plea of not guilty by	492
reason of insanity is entered;	493

(e) A civil or criminal malpractice action brought against	494
the employee assistance professional;	495

(f) When the employee assistance professional has the express	496
consent of the client or, if the client is deceased or disabled,	497
the client's legal representative;	498

(g) When the testimonial privilege otherwise provided by	499
division (L)(1) of this section is abrogated under law.	500

(M)(1) Except as provided in divisions (M)(2) to (4) of this	501
section, an accountant, concerning a communication made to the	502
accountant by a client in that relation or the accountant's advice	503
to the client.	504

(2) Division (M)(1) of this section does not apply, and an	505
accountant may testify or may be compelled to testify concerning a	506
communication or advice described in that division, if the client	507
expressly consents to the accountant's testifying or if the client	508
is deceased and the client's surviving spouse or the executor or	509
administrator of the client's estate expressly consents to the	510
accountant's testifying.	511

(3) If the client voluntarily testifies or if the client is	512
deemed to have waived the accountant-client testimonial privilege	513
created by division (M)(1) of this section, that division does not	514
apply, and the accountant may testify or may be compelled to	515
testify on the same subject upon which the client voluntarily	516
testifies or on the same subject with respect to which the client	517
is deemed to have waived the accountant-client testimonial	518
privilege.	519

(4) Division (M)(1) of this section does not apply to work	520
papers or other work product of an accountant.	521

(5) The accountant-client testimonial privilege created by	522
division (M)(1) of this section is not affected by an accountant's	523
participation in a quality review conducted in accordance with	524
section 4701.04 of the Revised Code.	525

(6) The general assembly hereby declares its intent that the	526
accountant-client testimonial privilege created by division (M)(1)	527
of this section be construed, interpreted, and applied in a manner	528
consistent with the attorney-client testimonial privilege created	529
under division (A) of this section.	530

(7) As used in this division:

531

(a) "Public record" has the same meaning as in section 149.43	532
of the Revised Code.	533

(b) "Work papers or other work product" means any of the	534
following that do not include deliberative communications made to	535
an accountant by a client in that relation or the accountant's	536
advice to the client in connection with those deliberative	537
communications:	538

(i) Federal, state, or local tax returns;

539

(ii) Audit, review, compilation, or other similar reports;

540

(iii) Financial reports that have been disclosed to third	541
parties, that are public records or otherwise are required by the	542
law of this state or the United States to be made public, or that	543
are mere data compilations;	544

(iv) Financial information not covered by division	545
(M)(7)(b)(i), (ii), or (iii) of this section.	546

Section 2. That existing section 2317.02 of the Revised Code	547
is hereby repealed.	548