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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


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 Code 4-101, substantially modified.

MR 1.6 was not adopted. IRPC 1.6(a) is new language; IRPC 1.6(b), (c) and (d) are Illinois Code 4-101(c), (d) and (3), somewhat modified. IRPC 1.6(e) is new language. MR 1.6 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. IRPC 1.6(d) reflects the Illinois Lawyers' Assistance Program for lawyers with substance abuse problems, and IRPC 1.6(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 MR 1.6 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 IRPC 1.6 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 IRPC 1.6.

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. IRPC 1.7(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 IRPC 5.3. 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 information . . . 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 client’s 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

Rule 8.3, 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 ." Rule 1.6 therefore can be said to trump Rule 8.3 - 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 Rule 1.6(b) or (c) exceptions is applicable.

Rule 3.3, however, is not trumped by Rule 1.6. Rule 3.3(b) states that the a lawyer's duties when appearing before a tribunal, as stated in Rule 3.3(a), "apply even if compliance requires disclosure of information otherwise protected by Rule 1.6."

Rule 1.6 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 Lawyers’ 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. 2nd Dist 1995).

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. 2nd Dist. 1992).

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. 5th Dist. 1977). Where a client communicates the client's address in confidence to an attorney, where the attorney does not represent that client in the current litigation, and where disclosure of the client's address may result in danger to the client, the client's address is protected by the attorney-client privilege. Id. Where the client's address was not communicated in confidence, it is not protected by the attorney-client privilege. Sunga v. Lee, 141 N.E.2d 63 (Ill. App. 1st Dist. 1957).

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. 1st Dist. 1995).

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. 1st Dist. 1994). The corporation has the burden of proof, when asserting the attorney-client privilege, of demonstrating that: the communication originated in a confidence that would not be disclosed; the communication was made to an attorney acting in his/her legal capacity for the purpose of securing legal advice or services; the communication remained confidential; and the employee who communicated with the attorney is a member of the "control group." Midwesco-Paschen Joint Venture, 638 N.E2d 322 (Ill. App. 1st Dist. 1994). The "control group" test focuses on the individual people who substantially influence decisions, not the facts that substantially influence decisions. Archer Daniels Midland Co. v. Koppers Co., 485 N.E.2d 1301 (Ill. App. 1st Dist. 1985).

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. Supp. 916, 927-928 (N.D. Ill. 1989).

1.6:475      Privilege for Governmental Clients

Rule 1.6 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. Supp. 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. 1st Dist. 1977). The confidentiality of attorney-client communications continues after sentencing of a criminal defendant. People v. Halluin, 344 N.E.2d 579 (Ill. App. 5th Dist. 1976). The privilege even exists after the death of the client. Hitt v. Stephens, 675 N.E.2d 275 (Ill. App. 4th Dist. 1997).

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. 2nd Dist. 1995).

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. 5th Dist. 1979).

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. 1st Dist. 1992), rev’d on other grounds, 615 N.E.2d 736 (Ill. 1993).

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. 2nd Dist. 1993), aff’d 647 N.E.2d 266 (Ill. 1995).

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) the reasonableness of the precautions taken to prevent disclosure; (2) the time taken to rectify the error; (3) the scope of the discovery; (4) the extent of the disclosure; and (5) the overriding issue of fairness. Dalen v. Ozite Corp., 594 N.E.2d 1365 (Ill. App. 2nd Dist. 1992).

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 party’s premises, the court held the privilege was waived. Suburban Sew ‘n 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. 1st Dist. 1991).

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. 4th Dist. 1997).

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. 4th Dist. 1976); Lanum v. Patterson, 151 Ill. App. 36 (Ill. App. 3rd Dist. 1909); In re Marriage of Decker, 606 N.E.2d 1094 (Ill. 1992).

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. 1st Dist. 1967).

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. 1st Dist. 1990); Hyams v. Evanston Hosp., 587 N.E.2d 117 (Ill. App. 1st Dist. 1992).

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. 2nd Dist. 1992).

The Illinois work-product doctrine is narrower than the federal work-product doctrine. Mlynarski v. Rush Presbyterian-St. Luke’s Medical Center, 572 N.E.2d 1025 (Ill. App. 1st Dist. 1991). In Illinois, “only ‘opinion work product,’ matter which discloses the theories, mental impressions or litigation plans of a party’s attorney, is protected from discovery.” Id. at 1029.

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. 3rd Dist. 1981).

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) the reasonableness of the precautions taken to prevent disclosure; (2) the time taken to rectify the error; (3) the scope of the discovery; (4) the extent of the disclosure; and (5) the overriding issue of fairness. Dalen v. Ozite Corporation, 594 N.E.2d 1365 (Ill. App. 2nd Dist. 1992).

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.