Illinois Legal Ethics
1.6 Rule 1.6 Confidentiality of Information
1.6:100 Comparative Analysis of Illinois Rule
¥ Primary Illinois References:
IL Rule 1.6
¥ Background References: ABA
Model Rule 1.6, Other Jurisdictions
¥ Commentary:
1.6:101 Model Rule Comparison
IRPC 1.6 was based on Illinois CodeÊ4-101, substantially modified.
MR 1.6 was not adopted. IRPC 1.6(a) is new language; IRPC 1.6(b), (c) and (d) are Illinois CodeÊ4-101(c), (d) and (3), somewhat modified. IRPC 1.6(e) is new language. MRÊ1.6 was felt not to reach many issues the Illinois Code touched upon, but it was also felt that the Illinois Code language was poorly organized. "Confidence" and "Secret" are defined terms in the Terminology of the IRPC. IRPCÊ1.6(d) reflects the Illinois Lawyers' Assistance Program for lawyers with substance abuse problems, and IRPCÊ1.6(e) reflects the problem of maintaining confidentiality in that program in light of In re Himmel, 533 N.E.2d 790 (Ill. 1988).
1.6:102 Model Code Comparison
[The discussion of this topic has not yet been written.]
1.6:200 Professional Duty of Confidentiality
¥ Primary Illinois References:
IL Rule 1.6
¥ Background References: ABA
Model Rule 1.6, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 55:101, ALI-LGL ¤¤ 111-117A,
Wolfram ¤¤ 6.1, 6.7
1.6:210 Definition of Protected Information
IRPC 1.6 differs from MR 1.6, in that Illinois extends the protection of the Rule to "confidences" and "secrets", whereas MRÊ1.6 protects "information relating to representation of a client". The Illinois terms are defined in the Terminology of the IRPC, whereas the MR language encompasses a broader concept.
The IRPC defines "confidence" as "information protected by the attorney-client privilege under applicable law", and "secret" as "information gained in the professional relationship, that the client has requested be held inviolate or the revelation of which would be embarrassing to or would likely be detrimental to the client."
1.6:220 Lawyer's Duty to Safeguard Confidential Client Information
IRPC 1.6 forbids, subject to the exceptions stated below, the use or revelation of confidences or secrets, without informed consent (consent "after disclosure"), and the prohibition is effective both "during or after termination of the professional relationship with the client." It should be noted, however, that IRPC 1.9 ("Conflict of Interest: Former Client") forbids a lawyer from using "information relating to the representation to the disadvantage of the former client" unless such use is permitted by IRPCÊ1.6 or "the information has become generally known."
1.6:230 Lawyer Self-Dealing in Confidential Information [see also 1.8:300]
Since IRPC 1.6 forbids not only the revelation of client confidences or secrets, but also their use, self-dealing of any kind would be forbidden. The prohibitions of IRPC 8.4(a)(3) and (4), relating to criminal acts, and conduct involving dishonesty, fraud, deceit and misrepresentation would strengthen the commands of IRPCÊ1.6.
1.6:240 Use or Disclosure of Confidential Information of Co-Clients
IRPC 1.7(b) governing conflicts of interest where the representation of one client may be materially limited by the lawyer's representation of another client, requires that the lawyer reasonably believes that the representation "will not be adversely affected" and states that the "client" [singular] must give informed consent. The Rule is unclear as to which "client" is described, and as a practical matter, the consent of both clients having the possible relationship may be required. IRPCÊ1.7(b), however, does not explicitly address the common representation of two or more clients having a common cause of action or common objective in a representation. That situation would appear to be governed by IRPC 1.7(c), stating "When representation of multiple clients in a single matter is undertaken, the disclosure [i.e. the information necessary to make a client's consent an informed one] shall include explanation of the implications of the common representation and the advantages and risks involved." The practical effect of this language normally requires the lawyer to explain to the multiple clients that he or she cannot keep one client's confidences and secrets separate from those of another client; all information relating to the common engagement must be shared.
1.6:250 Information Imparted in Lawyer Counseling Programs
Illinois maintains a counseling program for lawyers with substance abuse problems, Lawyer's Assistance Program, Inc. This body is given official recognition by the Illinois Supreme Court, and treatment conducted by the Program is often made a condition of reinstatement of a lawyer otherwise subject to professional discipline. IRPC 1.6(e) states that any information received by a lawyer in a formal proceeding before a trained intervenor, or intervenors, of the Program shall be deemed to have been received from a client for the purposes of IRPC 1.6.
1.6:260 Information Learned Prior to Becoming a Lawyer
IRPC 5.3 ("Responsibilities Regarding Nonlawyer Assistants") requires any lawyer employing persons not admitted to the bar to take appropriate actions to ensure that the conduct of such personnel is compatible with the IRPC. Although the Rule does not directly command the man or woman who is not yet a lawyer, conduct which would violate IRPC 1.6 if performed by a lawyer would reflect upon the character and fitness of such an employee when and if he or she applied for admission to the bar, unless the employing lawyer or law firm neglected its duties under IRPCÊ5.3. A lawyer asked to assist an applicant for admission while knowing of such violative conduct by the applicant who was not forthcoming about it might be in violation of IRPC 8.1, relating to a lawyer's duties in regard to bar admission procedures.
1.6:300 Exceptions to Duty of Confidentiality--In General
¥ Primary Illinois References:
IL Rule 1.6
¥ Background References: ABA
Model Rule 1.6, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 55:101, ALI-LGL ¤¤ 111-117A,
Wolfram ¤¤ 6.4, 6.7
1.6:310 Disclosure to Advance Client Interests or with Client Consent
Although IRPC 1.6 does not expressly state when it is appropriate or permitted to reveal a client confidence or secret in the normal pursuit of the engagement, in some circumstances that subject should be pursued by the lawyer and client in the consultations referred to in IRPC 1.2.
1.6:320 Disclosure When Required by Law or Court Order
IRPC 1.6(c)(1) permits ("a lawyer may use or reveal") disclosure when "required by law" or when required by court order. See In re Marriage of Decker, 606 N.E. 2d 1094 (1992).
1.6:330 Disclosure in Lawyer's Self-Defense
IRPC 1.6(c)(3) permits a lawyer to reveal confidences or secrets "necessary" to defend the lawyer or the lawyer's employees or associates against an accusation of wrongful conduct. It should be noted, as it is in the Comment to MR 1.6, that the accusation of misconduct might not be that of the client; and should a third party make such an accusation, the lawyer may face a conflict between his or her need for a defense, and the client's need for confidentiality.
1.6:340 Disclosure in Fee Dispute
IRPC 1.6(c)(3) permits a lawyer to disclose otherwise protected material if necessary to establish or collect a fee.
1.6:350 Disclosure to Prevent a Crime
IRPC 1.6(c)(2) permits (but does not require) a lawyer to disclose the client's intent to commit a crime other than one involving death or serious bodily harm.
1.6:360 Disclosure to Prevent Death or Serious Bodily Injury
IRPC 1.6(b) requires a lawyer to "reveal informationÊ.Ê.Ê. to the extent it appears necessary to prevent the client from committing" murder or serious bodily injury.
1.6:370 Disclosure to Prevent Financial Loss
Except as such a financial loss involves a crime described in IRPC 1.6(c)(2), there is no exception to a lawyer's duty of confidentiality, occasioned by a financial loss.
1.6:380 Physical Evidence of Client Crime [see 3.4:210]
IRPC 1.6 does not expressly relate to the physical evidence or records of a clientÕs confidence or secret, although nothing in the Rule excludes the notion that a physical object or document may be the protected material and not just the evidence of a fact. IRPC 3.4(a)(1) forbids the destruction or concealment of "a document or other material having potential evidentiary value" and further forbids counseling or assisting a client in doing so. This prohibition does not require the disclosure of the material, although the same Rule forbids the lawyer from unlawfully obstructing "another party's access to evidence".
1.6:390 Confidentiality and Conflict of Interest
As noted under 1.6:240, in certain situations lawyers may represent clients whose interests materially impact each other, given informed consent on both sides. To obtain that informed consent, a lawyer must often (and probably usually) reveal significant client information as to each client. Lawyers must make that necessity clear to each client so involved in advance of seeking consent.
1.6:395 Relationship with Other Rules
RuleÊ8.3, establishing a lawyer's duty to report the professional misconduct of another lawyer, is limited to knowledge of misconduct "not otherwise protected as a confidence by these Rules ." RuleÊ1.6 therefore can be said to trump RuleÊ8.3 - that is, a lawyer may not report the professional misconduct of another lawyer if that information constitutes a "confidence" or "secret" unless one of the RuleÊ1.6(b) or (c) exceptions is applicable.
RuleÊ3.3, however, is not trumped by RuleÊ1.6. RuleÊ3.3(b) states that the a lawyer's duties when appearing before a tribunal, as stated in RuleÊ3.3(a), "apply even if compliance requires disclosure of information otherwise protected by RuleÊ1.6."
RuleÊ1.6 and its exceptions also help to define the scope of several other important rules. See Rules 1.7 (Conflict of Interest: General Rule); 1.9 (Conflict of Interest: Former Client); 1.10 (Imputed disqualification: General Rule); 1.13 (Organization as Client); 2.3 (Evaluation for Use by Third Persons).
1.6:400 Attorney-Client Privilege
¥ Primary Illinois References:
IL Rule 1.6
¥ Background References: ABA
Model Rule 1.6, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 55:301, ALI-LGL ¤¤ 118-128,
Wolfram ¤¤ 6.3-6.5
1.6:410 Privileged Communications
As noted at 1.6:210, Illinois specifically defines (as "Confidences") material subject to the attorney-client privilege as material which is subject to the attorney's duty to protect.
1.6:420 Privileged Persons
IRPC 1.6 limits
the privilege to clients and a trained intervenor in the LawyersÕ Assistance
Program. The privilege also attaches to communications between a client and
a non-lawyer, specifically between an insured and an insurer, where the insurer
has a duty to defend the insured. Exline v. Exline, 659 N.E.2d
407 (Ill. App. 2
1.6:430 Communications "Made in Confidence"
No attorney-client privilege attaches to information communicated by the client to attorneys for later disclosure, such as after death. Dickerson v. Dickerson, 153 N.E. 740 (Ill. 1926).
1.6:440 Communications from Lawyer to Client
Confidential communications of legal advice from lawyer
to client are normally covered by the attorney-client privilege in Illinois.
But see dictum to the contrary Dalen v. Ozite Corp., 594
N.E.2d 1365 (Ill. App. 2
1.6:450 Client Identity, Whereabouts, and Fee Arrangements
As a general rule, the attorney-client privilege does not
extend to the identity of an attorney's client. Taylor v.
Taylor, 359 N.E.2d 820 (Ill. App. 5
1.6:460 Legal Assistance as Object of Communication
The attorney-client privilege requires that legal advice
of any kind be sought from a professional legal advisor (in such a capacity).
In re Grand Jury January 246, 651 N.E.2d 696 (Ill. App. 1
1.6:470 Privilege for Organizational Clients
Illinois limits the application of the attorney-client
privilege between an attorney and a corporate client to communications between
"control group" employees and an attorney. Consolidation
Coal Co. v. Bucyrus-Erie Co., 432 N.E.2d 250 (Ill. 1982). The "control
group" test limits the privilege to communications of top management with corporate
attorneys and communications of employees who directly advise top management
and upon whose opinions and advice the decisionmakers rely. Id.;
Midwesco-Paschen Joint Venture for Viking Projects v. Imo
Indust., Inc., 638 N.E.2d 322 (Ill. App. 1
In Federal Courts, the privilege is broader see Upjohn v. United States, 449 U.S. 383 (1981) 73, 77, 398 Communications between the general partners of a limited partnership may be privileged and not discoverable by its limited partners. Ferguson v. Lurie, 139 F.R.D. 362 (N.D. Ill. 1991). In a pre-Model Rules case, a federal district court in Illinois held that a lawyer representing a limited partnership also represented a limited partner. Pucci v. Santi, 711 F.ÊSupp. 916, 927-928 (N.D. Ill. 1989).
1.6:475 Privilege for Governmental Clients
RuleÊ1.6 makes no distinction between governmental and non-governmental clients. A public body can hold an attorney-client privilege, just as a private individual can. In re Information to Discipline Certain Attorneys of Sanitary Dist., 184 N.E. 332 (Ill. 1932) (holding privilege applicable to the City of Chicago); see also Kadish v. Commodity Futures Trading Comm'n, 548 F.ÊSupp. 1030 (D.C. Ill. 1982) (applying privilege to CFTC); Herbes v. Graham, 536 N.E.2d 164 (Ill. App. 2nd Dist. 1989) (applying privilege to Libertyville Township).
However, additional policy considerations may come into play when applying the privilege to governmental clients. In People ex rel. Hopf v. Barger, 332 N.E.2d 649 (Ill. App. 2nd Dist 1975), the court discussed the competing policies surrounding an attorney-client privilege for a client which is a public body, stating that "disclosure of all forms of information preliminary to decision-making may prevent the efficient administration of governmental functions and thus adversely affect the public interest." Hopf, 332 N.E.2d at 658. The court held that the legislature did not intend the Open Meetings Act, now found at 5 ILCS 120/1 et seq. (West 1997), to prevent a public body from engaging in "any private consultation with an attorney as to foreseeable litigation, for this would, in our view, result in the untenable further conclusion that a potential private adversary was intended to have a litigious advantage over the public." Hopf, 332 N.E.2d at 659. The court cautioned, however, that such consultations may not be used "as a device to thwart the liberal implementation of the policy that the decision-making process in to be open." Hopf, 332 N.E.2d at 660.
1.6:480 Privilege of Co-Clients
The common interest doctrine may defeat claims of privilege among a group of clients when the attorney provides joint or simultaneous representation of the parties. Waste Management, Inc. v. International Surplus Lines Ins. Co., 579 N.E.2d 322 (Ill. 1991).
1.6:490 Common-Interest Arrangements
Where a contract provides for cooperation among two parties and/or where the parties have a common interest in a suit, no attorney-client privilege attaches to information communicated between either party and the attorney in the first suit in a subsequent suit between the parties. Waste Management, Inc. v. International Surplus Lines Ins. Co., 579 N.E.2d 332 (Ill. 1991).
1.6:495 Duration of Attorney-Client Privilege
IRPC 1.6 indicates
that the attorney-client privilege lasts even after the termination of the attorney-client
relationship. The attorney-client privilege is perpetual and continues after
termination of the suit and termination of the attorney-client relationship.
Taylor v. Taylor, 359 N.E.2d 820 (Ill. App. 1
1.6:500 Waiver of Attorney-Client Privilege
¥ Primary Illinois References:
IL Rule 1.6
¥ Background References: ABA
Model Rule 1.6, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 55:401, ALI-LGL ¤¤ 128-130,
Wolfram ¤ 6.4
The privilege is permanently protected in Illinois unless
it is waived; only the client can waive it. Exline v. Exline;
659 N.E.2d 407 (Ill. App. 2
1.6:510 Waiver by Agreement, Disclaimer, or Failure to Object
When the client has an opportunity to assert the attorney-client
privilege during testimony at trial and fails to do so, the privilege is waived.
People v. Watson, 395 N.E.2d 682 (Ill. App. 5
1.6:520 Waiver by Subsequent Disclosure
Voluntary disclosure of privileged information by the client
waives the attorney-client privilege. Estate of Hoover, 589
N.E.2d 899 (Ill. App. 1
Voluntary disclosure of privileged information does not waive the attorney-client privilege as to all other non-disclosed communications which may have taken place. Ibid.
Matters a client intends to disclose to third parties,
who are not agents of either the attorney or the client, are not privileged.
People v. McDaniel, 619 N.E.2d 214 (Ill. App. 2
Providing an opposing party complete access to files, including
privileged information, waives the attorney-client privilege that applied to
those documents. The Illinois courts determine waiver of privilege by looking
at (1)Êthe reasonableness of the precautions taken to prevent disclosure; (2)Êthe
time taken to rectify the error; (3)Êthe scope of the discovery; (4)Êthe extent
of the disclosure; and (5)Êthe overriding issue of fairness. Dalen
v. Ozite Corp., 594 N.E.2d 1365 (Ill. App. 2
When the client voluntarily testifies about conversations with his attorney, he waives the attorney-client privilege, which allows the attorney to testify concerning such matters. Turner v. Black, 166 N.E.2d 588 (Ill. 1960).
Where one party obtained lawyer/client letters in a trash dumpster near the other partyÕs premises, the court held the privilege was waived. Suburban Sew Ôn Sweep v. Swiss-Bernina, Inc., 91 F.R.D. 254 (N.D. Ill. 1981).
1.6:530 Waiver by Putting Assistance or Communication in Issue
Where a client asserts ineffective assistance of counsel
and, in doing so, puts in issue the substance of communications between herself
and her attorney, the client has waived the attorney-client privilege. People
v. O'Banner, 575 N.E.2d 1261 (Ill. App. 1
1.6:600 Exceptions to Attorney-Client Privilege
¥ Primary Illinois References:
IL Rule 1.6
¥ Background References: ABA
Model Rule 1.6, Other Jurisdictions
¥ Commentary: ABA/BNA ¤¤ 55:901 et
seq., ALI-LGL ¤¤ 131-135, Wolfram ¤¤ 6.4
1.6:610 Exception for Disputes Concerning Decedent's Disposition of Property
A client's death affects the viability of the attorney-client
privilege in a will contest because the decedent is presumed to waive the privilege
so that the distribution scheme he intended be put into effect. Hitt
v. Stephens, 675 N.E.2d 275 (Ill. App. 4
1.6:620 Exception for Client Crime or Fraud
Crime-fraud exception applies to attorney-client privilege
when a client seeks or obtains the services of an attorney in furtherance of
criminal or fraudulent activity. People v. Wurbs, 347 N.E.2d
879 (Ill. App. 4
1.6:630 Exception for Lawyer Self-Protection
An attorney may disclose confidential communication with
a client when necessary to protect the attorney's own rights inter se, such
as in enforcing a fee agreement. Sokol v. Mortimer, 225 N.E.2d
496 (Ill. App. 1
1.6:640 Exception for Fiduciary-Lawyer Communications
There appears to be no Federal or State judicial decisions or Illinois state bar association opinion on the subject.
1.6:650 Exception for Organizational Fiduciaries
There appears to be no Federal or State judicial decisions or Illinois state bar association opinion on the subject.
1.6:660 Invoking the Privilege and Its Exceptions
The person invoking the privilege has the burden of proving
that the requirements for the existence of attorney-client privilege are met.
Cox v. Yellow Cab Co., 337 N.E.2d 15 (Ill. 1975);
Claxton v. Thackston, 559 N.E.2d 82 (Ill. App. 1
1.6:700 Lawyer Work-Product Immunity
¥ Primary Illinois References:
IL Rule 1.6
¥ Background References: ABA
Model Rule 1.6, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 91:2201, ALI-LGL ¤¤ 136-142,
Wolfram ¤ 6.6
1.6:710 Work-Product Immunity
The work-product doctrine applies to documents prepared
by either client or attorney in anticipation of litigation. Dalen
v. Ozite Corp., 514 N.E.2d 1365 (Ill. App. 2
The Illinois work-product doctrine is narrower than the
federal work-product doctrine. Mlynarski v. Rush Presbyterian-St.
LukeÕs Medical Center, 572 N.E.2d 1025 (Ill. App. 1
If an attorney's notes contain a mixture of unprivileged factual material and privileged opinion work product, the notes will be subject to discovery only if a party can show that it is absolutely impossible to secure the factual information from other sources. Consolidation Coal Co. v. Bucyrus-Erie Co., 432 N.E.2d 250 (Ill. 1982).
1.6:720 Ordinary Work Product
Ordinary work product, relevant material generated in preparation for litigation which does not disclose "conceptual data" is discoverable. Monier v. Chamberlain, 221 N.E.2d 410 (Ill. 1966); Waste Management, Inc. v. International Surplus Lines Ins. Co., 579 N.E.2d 322 (Ill. 1991).
1.6:730 Opinion Work Product
Opinion or core work product, materials generated in preparation for litigation which reveal the mental impressions, opinions, or trial strategy of an attorney, is subject to discovery upon a showing of impossibility of securing similar information from other sources. Monier v. Chamberlain, 221 N.E.2d 410 (Ill. 1966); Waste Management, Inc. v. International Surplus Lines Ins. Co., 579 N.E.2d 322 (Ill. 1991).
1.6:740 Invoking Work-Product Immunity and Its Exceptions
The party seeking to protect material from disclosure based
on the work-product privilege has the burden of demonstrating that the work-product
privilege applies. Nieukirk v. Board of Fire & Police Comm.,
423 N.E.2d 1259 (Ill. App. 3
1.6:750 Waiver of Work-Product Immunity by Voluntary Acts
Providing an opposing party complete access to files, including
privileged information, waives the work-product privilege that applied to those
documents. The Illinois courts determine waiver of work-product privilege by
looking at (1)Êthe reasonableness of the precautions taken to prevent disclosure;
(2)Êthe time taken to rectify the error; (3)Êthe scope of the discovery; (4)Êthe
extent of the disclosure; and (5)Êthe overriding issue of fairness. Dalen
v. Ozite Corporation, 594 N.E.2d 1365 (Ill. App. 2
1.6:760 Waiver of Work-Product Immunity by Use in Litigation
Where the work product is either the basis of a lawsuit or the basis of a defense of a lawsuit, there is an exception to the work-product doctrine. Waste Management, Inc. v. International Surplus Lines Ins. Co., 579 N.E.2d 322 (Ill. 1991).
1.6:770 Exception for Crime or Fraud
There appears to be no Federal or State judicial decisions or Illinois state bar association opinion on the subject.