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What is the Attorney-Client Privilege in Illinois?

Friday, May 17th, 2013 at 3:20pm

The laws of evidence determine what kinds of communications, documents, and information is considered privileged and thus not available for use as evidence at trial.  There are a handful of privileges recognized, but as a general rule Illinois law disfavors he assertion of privilege in favor of disclosure.  To be discussed here is the attorney-client privilege in Illinois.

Attorney-Client Privilege

The attorney-client privilege protects two types of information from disclosure by any means of discovery.  These are qualifying communications between the client and the attorney and work-product prepared in the course of representing the client.  The threshold requirement necessary to assert this privilege is the existence of an attorney-client relationship.  This doesn’t necessarily require a formal representation agreement, but does require that a client or prospective client sought out the legal advice or services of an attorney and a confidential communication ensued.

Communications between attorney and client must meet certain elements in order to qualify for the privilege.  First, it must be an exchange of information that was made in confidence, meaning that it was made with the understanding that it was private and not to be shared with others.  Second, the communication must be made to the attorney who is acting in his legal capacity for the purpose of obtaining legal advice or services.  The last element required to qualify as privileged is that the communication must remain confidential.  See Rounds v. Jackson.

Since Illinois law disfavors privilege, this rule is narrowly construed.  For example, a privilege is not likely to be found if a client is loudly discussing a topic with his attorney in a crowded and public place in the company of several other people.  Also, the communication must be primarily legal in nature and doesn’t typically extend to business advice.

Illinois uses a “control group” test when the attorney-client communication involves a corporation.  This means the information is privileged when the communication was made by someone in a management or advisory role for the corporation, or in other words, is a shot-caller for the corporation.  Only if a person is within this control group is the communication eligible for the attorney-client privilege.  See Consolidated Coal v. Bucyrus-Erie.

The work product doctrine protects material that is used in preparation for trial.  The types of protected materials are any “theories, mental impressions, or litigation plans of the party’s attorney.”  See Ill. Sup. Ct. Rule 201(b)(2).  More specifically, this rule only extends to materials prepared by or for a party so long as they are prepared for litigation or trial.  This is also a narrow doctrine and does not protect factual information, but rather protect opinion work product.

Waiver

This privilege can be waived when communications originally intended to remain confidential is later disclosed to others.  A fairly recent Illinois Supreme Court decision, however, has narrowed the scope of this rule to only apply to disclosures made in the course of litigation.  This means that third-party disclosures made outside of the judicial process are still protected.  See Center Partners v. Growth Head GP.

There are many valuable legal tools that can protect your privacy and rights.  Contact a qualified Illinois Criminal Defense Attorney for more information.

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