Brunton v. Kruger , 32 N.E.3d 567 ( 2015 )

2015 IL 117663
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 117663)
JUNE BRUNTON, Appellee v. ROBERT KRUGER et al. (Matthew F. Tibble,
Contemnor-Appellant).
Opinion filed March 19, 2015.
CHIEF JUSTICE GARMAN delivered the judgment of the court, with opinion.
Justices Freeman, Thomas, Kilbride, Karmeier, Burke, and Theis concurred in
the judgment and opinion.
OPINION
¶1 The circuit court of McLean County held attorney Matthew F. Tibble in direct,
but noncontumacious, civil contempt after he refused to comply with an order to
disclose certain documents that were the subject of discovery requests in the
underlying will contest. Tibble, who represented the accounting firm of Striegel,
Knobloch & Company, LLC, cited the accountant’s privilege provision of the
Illinois Public Accounting Act (225 ILCS 450/27 (West 2012)), as the basis for his
refusal to comply. The appellate court vacated the contempt finding, but otherwise
affirmed the judgment of the circuit court ordering release of the documents. 2014
IL App (4th) 130421.
¶2 This court granted Tibble’s petition for leave to appeal pursuant to Supreme
Court Rules 304(b)(5) and 315. Ill. S. Ct. Rs. 304(b)(5), 315 (eff. Feb. 26, 2010).
For the following reasons, we affirm the judgment of the appellate court.
¶3 BACKGROUND
¶4 The underlying litigation involves a will contest brought by June Brunton, the
daughter of Helen P. and Gordon J. Kruger, against her brother, Robert Kruger, as
trustee of the trusts established by their late parents and as personal representative
of their estates (Estates), and against Robert and other family members as
individuals. Brunton, who was not named a beneficiary of the trusts, alleges undue
influence by certain family members and her mother’s diminished capacity at the
time the trust documents were executed.
¶5 The elder Krugers consulted with the accounting firm of Striegel, Knobloch &
Company, LLC (Striegel) during their estate planning process. They provided
Striegel with confidential information, including information about their family,
income, assets, and estate planning goals. Striegel, in turn, provided estate planning
information to the attorney who prepared the Krugers’ trust documents and “pour
over” wills.
¶6 Both Brunton and the Estates issued subpoenas to Dennis Knobloch, a certified
public accountant (CPA) at Striegel, seeking discovery of the information and
documents provided by the Krugers to Striegel. The Estates subsequently issued a
deposition subpoena to Knobloch, seeking the same information.
¶7 Another CPA at Striegel complied with the Estates’ subpoenas, turning over all
of the documents in its possession that related to the Krugers’ estate planning.
However, Striegel did not provide these documents to Brunton, who then filed a
motion to compel compliance with her subpoena. Striegel invoked section 27 of the
Act, which governs the confidentiality of records or information obtained by a
certified public accountant acting in his confidential capacity as a CPA. The circuit
court ordered Striegel to produce tax documents, but held that the estate planning
documents were privileged under section 27. Striegel complied.
¶8 Brunton then issued deposition subpoenas to a Striegel CPA and a non-CPA
employee, seeking production of the estate planning documents that the court had
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previously ruled privileged. Striegel filed a motion to quash the subpoenas, again
invoking section 27.
¶9 At a subsequent hearing, the circuit court again found the estate planning
documents privileged, but held that Striegel had waived the privilege by providing
the documents to the personal representative of the Krugers’ Estates. In addition to
waiver, the circuit court found that a testamentary exception to the statutory
privilege applied in this case, where the donative and testamentary intent of
now-deceased clients were at issue, one of the CPA advisors was deceased and one
was no longer competent, and the attorney who prepared the wills and trust
documents was also deceased.
¶ 10 Based on waiver and the testamentary exception, the circuit court denied the
motion to quash and ordered Striegel to produce the documents. Striegel’s attorney,
Tibble, refused to comply with the discovery order and was found in contempt and
fined $100, thus allowing the matter to be taken to the appellate court.
¶ 11 The appellate court held that the client, not the CPA, is the holder of the
privilege (2014 IL App (4th) 130421, ¶ 43), and that the statutory accountant’s
privilege is subject to the same testamentary exception as the common law
attorney-client privilege (id. ¶ 46). The appellate court held, in the alternative, that
the personal representative and other heirs had waived the privilege by filing briefs
with the appellate court in which they urged the court to affirm the circuit court’s
discovery order.
¶ 12 Thus, the appellate court vacated the finding of contempt, but otherwise
affirmed the circuit court’s judgment.
¶ 13 ANALYSIS
¶ 14 The parties present several issues. Appellant Tibble asks: (1) whether the
accountant’s privilege belongs to the client who communicated information to the
accountant or to the accountant who received the information; (2) whether a
testamentary exception is applicable to the accountant’s privilege; and (3) whether
the holder of the privilege has waived it.
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¶ 15 Appellee Brunton argues that the information she seeks from Striegel is not
“confidential information acquired in the course of public accounting,” and, thus,
section 27 is not implicated.
¶ 16 The other appellees, the trustee/executor and the beneficiaries of the wills and
trusts, urge this court to affirm the judgments below. Specifically, they argue that
the privilege belongs to the client and, thus, to the client’s estate. In the alternative,
they argue that if the privilege belongs to the accountant, a testamentary exception
to the privilege applies, and that the accounting firm waived the privilege when it
produced documents in response to the Estates’ subpoena.
¶ 17 Acting in the Capacity of Licensed or Registered CPA
¶ 18 If Brunton is correct that the information at issue was not “obtained by [the
accountant] in his confidential capacity as a licensed or registered CPA,” then
section 27 does not apply. She points to section 8.05(a) of the Act, which defines
“Accountancy activities”:
“(a) Accountancy activities are services performed by a CPA, including:
(1) signing, affixing, or associating the names used by a person or CPA
firm to any report expressing an assurance on a financial statement or
disclaiming an opinion on a financial statement based on an audit or
examination of that statement or to express assurance on a financial
statement;
(2) other attestation engagements not otherwise defined in paragraph
(1); or
(3) offering to perform or performing one or more types of the
following services involving the use of professional skills or competencies:
accounting, management, financial or consulting services, compilations,
internal audit, preparation of tax returns, furnishing advice on tax matters,
bookkeeping, or representations of taxpayers; this includes the teaching of
any of these areas at the college or university level.” 225 ILCS 450/8.05(a)
(West Supp. 2013).
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¶ 19 Based on this definition, she argues that the accountant privilege of section 27
applies only to “financial statement certification,” and that Striegel’s actions
“encroached into another licensed profession, the practice of law.” Specifically, she
asserts that Striegel suggested that the Krugers’ wills contain in terrorem clauses
and conveyed the Krugers’ testamentary intent to the attorney who drafted their
wills and trust documents. These acts, she argues, fall outside the statutory
definition of accounting activities.
¶ 20 The appellate court properly rejected Brunton’s narrow interpretation of section
8.05, noting that “auditing financial statements is not the only service that CPAs
offer to the public—even though they alone are allowed to perform that particular
service.” 2014 IL App (4th) 130421, ¶ 32. Certified public accountants use their
“ ‘professional skills or competencies’ ” (id. (quoting Pub. Act 98-254, § 10 (eff.
Aug. 9, 2013) (adding 225 ILCS 450/8.05))), to provide estate planning services
(id. ¶ 33). The appellate court concluded that the privilege of section 27 applies to
information obtained by an accountant in the course of providing estate planning
services, just as it applies to information obtained by an accountant providing one
of the services expressly listed in section 8.05(a). Indeed, the court noted, “it is
unclear why the legislature would care about confidentiality when the CPA audited
a financial statement but would not care about confidentiality when the CPA helped
a client with estate planning.” Id.
¶ 21 We agree with the appellate court’s analysis. In addition, we note that section
8.05(a), by using the word “including,” indicates a legislative intent that the list of
accounting functions that follows is nonexhaustive. See, e.g., People v. Perry, 224
Ill. 2d 312, 331 (2007) (interpreting the word “including” to mean that the specified
list of items is illustrative, not exhaustive). Because professional accountants
regularly provide the types of services that Striegel provided to the Krugers, and
because the information was provided to a Striegel accountant acting “in his
confidential capacity as a licensed or registered CPA” (225 ILCS 450/27 (West
Supp. 2013)), such information comes within the scope of the statutory accountant
privilege.
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¶ 22 Holder of the Privilege
¶ 23 At the time this dispute arose, 1 section 27 of the Public Accounting Act
provided: “Accountant as witness” “A licensed or registered [CPA] shall not be
required by any court to divulge information or evidence which has been obtained
by him in his confidential capacity as a licensed or registered [CPA].” 225 ILCS
450/27 (West 2012).
¶ 24 This case requires us to interpret section 27 to determine whether the privilege
is held by the CPA or by the client who provided the information. In doing so, our
primary objective is “to ascertain and give effect to the intent of the legislature.”
Gaffney v. Board of Trustees of the Orland Fire Protection District, 2012 IL
110012, ¶ 56. The best indication of that intent is the language of the statute itself,
which must be given its plain and ordinary meaning. People v. Hammond, 2011 IL
110044, ¶ 53. “We will not depart from the plain statutory language by reading into
it exceptions, limitations, or conditions that conflict with the expressed intent of the
legislature.” Gaffney, 2012 IL 110012, ¶ 56. Further, we will not utilize extrinsic
aids of statutory interpretation unless the statutory language is unclear or
ambiguous. Id. “A statute is ambiguous if it is capable of being understood by
reasonably well-informed persons in two or more different ways.” Krohe v. City of
Bloomington, 204 Ill. 2d 392, 395-96 (2003). Because interpretation of a statute is a
question of law, our review is de novo. In re Commitment of Fields, 2014 IL
115542, ¶ 32.
¶ 25 The circuit court held that the accountant who rendered accounting services in
his confidential capacity is the holder of the privilege and may choose to invoke it.
Tibble defends this position, pointing to what he describes as the “plain and
unambiguous language” of the section. However, he does not identify the specific
words in section 27 that express this plain meaning. Tibble also argues that for over
half a century, until the appellate court’s decision in the present case, every state
and federal court that has considered this statute has held that the privilege of
section 27 belongs to the accountant.
¶ 26 Brunton and the personal representative of the Estates support the result
reached by the appellate court, which neither relied on the plain meaning of the
statutory language nor found the statute ambiguous. Instead, the court observed that
1
Section 27 has since been amended to read: “Confidentiality of licensee’s and registrant’s
records.” Pub. Act 98-254, ¶ 10 (eff. Aug. 9, 2013).
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it is “rather simplistic to reason that *** the CPA rather than the client is the
intended holder of the privilege” and stated that section 27 “does not exist for the
benefit of CPAs; it exists for the benefit of clients.” 2014 IL App (4th) 130421,
¶ 42. The court stated that it disagreed with the federal decisions and that it found
the reasoning of the first such case to consider the holder of the privilege
unconvincing. 2014 IL App (4th) 130421, ¶¶ 40-41 (discussing Dorfman v. Rombs,
218 F. Supp. 905 (N.D. Ill. 1963)).
¶ 27 We first address Tibble’s argument that the question of who holds the privilege
of section 27 has been well settled for decades. This court has never had occasion to
address this question. Our appellate court has had several occasions to consider
section 27, but the issues presented in those cases involved the scope of the
privilege—which types of information and documents were privileged—not the
holder of the privilege. See In re October 1985 Grand Jury No. 746, 154 Ill. App.
3d 288, 296 (1987) (accountant could not refuse to disclose information about his
clients’ tax returns and accompanying work papers to a grand jury that was
investigating the clients for alleged failure to pay retailers’ occupation tax, as the
information sought by the grand jury was not confidential); In re Estate of Berger,
166 Ill. App. 3d 1045, 1075-76 (1987) (information given to an accountant in
connection with his preparation of audits and an accounting of the funds of an
incompetent adult were not privileged because they were prepared for the purpose
of filing in court and were, thus, public records); FMC Corp. v. Liberty Mutual
Insurance Co., 236 Ill. App. 3d 355, 356 (1992) (in case where both the client and
the accountant opposed production of the documents, the “sole issue on appeal
[was] whether the statutory accountant privilege protects the subpoenaed
documents from disclosure”). In FMC Corp., as in October 1985 Grand Jury and
Estate of Berger, the appellate court assumed, without deciding, that the accountant
was the holder of the privilege. In none of the three cases did this assumption affect
the outcome of the case.
¶ 28 Thus, because this question has not been answered by this court or our appellate
court, the doctrine of stare decisis plays no role in our analysis.
¶ 29 In FMC Corp., the appellate court referred in a footnote to prior federal cases
that had “construed the accountant privilege statute of Illinois as having established
a privilege which can be claimed only by the accountant.” Id. at 357 n.1 (citing
cases). The first such case was Dorfman.
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¶ 30 In Dorfman, the Internal Revenue Service had issued a subpoena to an
accountant, seeking disclosure of materials and information that had been provided
to him by his clients, the Dorfmans. They brought an action seeking to enjoin the
accountant to prevent his disclosure of the information to the IRS. Dorfman, 218 F.
Supp. at 905. The court commented that it “[a]dvisedly” referred to the statutory
privilege of section 27 “as an accountant privilege and not an accountant client
privilege *** because of the obvious language” of the provision.” Id. at 907. After
quoting the provision, which is substantively identical to the present language, the
court observed:
“The statute does not even mention the term client. There having been no
accountant client or accountant privilege at common law the statute must speak
for itself: and if indeed it does so speak for itself, then it is clear that what the
Illinois Legislature did in fact create was an accountant privilege, a privilege
whose benefit was to inure to, and which could only be claimed by, an
accountant. To this extent such a privilege would more closely resemble the
attorney ‘work product’ privilege and not the right of a client as founded in the
attorney client privilege.” Id.
¶ 31 Subsequent federal cases have accepted this interpretation of section 27 without
conducting further analysis. See, e.g., Western Employers Insurance Co. v. Merit
Insurance Co., 492 F. Supp. 53, 55 (N.D. Ill. 1979) (declining to order respondent’s
accounting firm to produce documents listed in subpoena duces tecum on the basis
of Illinois statutory accountant privilege; finding that the documents sought in
subpoena duces tecum directed at the respondent client are not privileged because
the privilege “inures only to the accountant. It cannot be raised or claimed by the
client.”); Stopka v. American Family Mutual Insurance Co., 816 F. Supp. 2d 516,
525 (N.D. Ill. 2011) (plaintiff property owners could not assert the privilege on
behalf of their accountant, who did not invoke it on his own behalf, and they could
not rely on his privilege to protect documents that they themselves possessed).
Thus, these decisions provide no greater support for Tibble’s position than did
Dorfman.
¶ 32 Although section 27 does not contain the word “client,” we agree with the
appellate court that the reasoning of Dorfman is unconvincing. The presence of the
word “accountant” in the title of the section and the term “CPA” in the provision
itself, combined with the absence of the word “client,” are not sufficient bases for
reaching this conclusion.
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¶ 33 However, the key words of the statute, which speak directly to the holder of the
privilege, are the words “shall not be required by any court.” Section 27 does not
state that the client shall not be required by any court to divulge his information; it
states that the accountant shall not be required to do so. Under the plain meaning of
these words, even if a client were to consent to disclosure by the accountant, the
statute still protects the accountant from being required by a court to divulge the
information.
¶ 34 Although we find that section 27 unambiguously confers its privilege on the
accountant, we find additional support for this conclusion in Illinois’s statutory
scheme governing evidentiary privileges.
¶ 35 The legislature has created a number of evidentiary privileges that are codified
in the Code of Civil Procedure. Specifically, these privileges are contained in
article VIII, Evidence, part 8, Privileged Communications. They include: Husband
and wife (735 ILCS 5/8-801 (West 2012)); Physician and patient (735 ILCS
5/8-802 (West 2012)); Confidentiality of Statements Made to Rape Crisis
Personnel (735 ILCS 5/8-802.1 (West 2012)); Confidentiality of statements made
to personnel counseling victims of violent crimes (735 ILCS 5/8-802.2 (West
2012)); Informant’s privilege (735 ILCS 5/8-802.3 (West 2012)); Clergy (735
ILCS 5/8-803 (West 2012)); Union agent and union member (735 ILCS 5/8-803.5
(West 2012)); Reporter’s privilege (735 ILCS 5/8-901 to 8-909 (West 2012));
Voter’s privilege (735 ILCS 5/8-910 (West 2012)); Language interpreter’s
privilege (735 ILCS 5/8-911 (West 2012)); and Interpreter for the deaf and hard of
hearing’s privilege (735 ILCS 5/8-912 (West 2012)).
¶ 36 Notably, the accountant privilege is codified in the Public Accounting Act,
which is part of chapter 225 of the Illinois Compiled Statutes, Professions and
Occupations. The Public Accounting Act is not part of the legislatively created
body of evidentiary privileges listed above. Rather, it is expressly tied to the
legislative scheme enacted to regulate the practice of the profession of public
accounting in the state. This context suggests that the accountant privilege was not
intended to function purely as an evidentiary rule, but also as an attribute of the
accounting profession.
¶ 37 Other acts within chapter 225, regulating the practice of other professions or
skills, also contain privilege provisions. For example, the Clinical Psychologist
Licensing Act provides that “[n]o clinical psychologist shall disclose any
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information he or she may have acquired from persons consulting him or her in his
or her professional capacity, to any persons except only: *** with the expressed
consent of the client, or in the case of his or her death or disability, or his or her
personal representative or other person authorized to sue or of the beneficiary of an
insurance policy on his or her life, health or physical condition.” 225 ILCS 15/5
(West 2012). The Clinical Social Work and Social Work Practice Act provides that
“[n]o licensed clinical social worker or licensed social worker shall disclose any
information acquired from persons consulting the social worker in a professional
capacity, except that which may be voluntarily disclosed under the following
circumstances: *** the written consent of the person who provided the
information.” 225 ILCS 20/16(1)(b) (West 2012) (“Privileged Communications
and Exceptions”).
¶ 38 Several other acts within chapter 225 also contain provisions titled “Privileged
communications and exceptions.” Each uses the same language, stating that no
member of the profession “shall disclose,” absent written consent of the person
who provided the information. See Marriage and Family Therapy Licensing Act
(225 ILCS 55/70(a) (West 2012)); Professional Counselor and Clinical
Professional Counselor Licensing and Practice Act (225 ILCS 107/75(a) (West
2012)); Genetic Counselor Licensing Act (225 ILCS 135/90(a) (West 2012)).
¶ 39 In each of these professions, as in the profession of accounting, clients provide
sensitive and private information to a professional with the expectation that the
information will be held in confidence. However, the legislature has chosen not to
use the same language in section 27 of the Public Accounting Act that it has used
repeatedly in acts governing other professions with similar privacy concerns. This
separate treatment of privileges in the context of the accountant-client relationship,
combined with the plain language of section 27, reveals a legislative intent to
confer the privilege upon the accountants who provide these services.
¶ 40 Another attribute of the statutory scheme regulating the practice of accounting
supports this conclusion. The Public Accounting Act is one of eight statutes
governing the practice of specific trades or professions that are subject to the
Regulatory Sunset Act (5 ILCS 80/4.34 (West Supp. 2013)). If these statutes
governing the practice of occupational therapy, accounting, veterinary medicine,
and other careers are not reenacted by January 1, 2024, they will be automatically
repealed. The Public Accounting Act, including its privilege provision, is directed
entirely at the conduct of members of the profession. It imposes licensure
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requirements and other standards, and it also confers a privilege on members of the
profession when they obtain confidential information while acting within the scope
of their duties. In contrast, none of the evidentiary privilege statutes contained in
the Code of Civil Procedure are subject to automatic repeal, thus signaling a
legislative intent to treat the accountant privilege differently from the evidentiary
privileges.
¶ 41 Our conclusion that the legislature intended the privilege to be held by the
accountant and not by the client is further bolstered by the recent reenactment of the
Public Accounting Act. Under the earlier version of the Regulatory Sunset Act (5
ILCS 80/4.24 (West 2012)), the Public Accounting Act was due for automatic
repeal as of January 1, 2014. It was reenacted with various revisions by Public Act
98-254, effective August 9, 2013. House Bill 2726 was adopted with 104 votes in
favor, no votes against, and one vote of present. 98th Ill. Gen. Assem., House
Proceedings, Apr. 12, 2013, at 141 (statements of Representative Turner). During
the Senate Session at which the vote was taken, Senator Martinez offered the bill,
stating: “House Bill 2726 is an initiative of the Illinois Certified Public Accountant
Society and extends the sunset of the Illinois Public Acting—Accounting Act by
ten years and makes several other changes.” 98th Ill. Gen. Assem., Senate
Proceedings, May 14, 2013, at 96 (statements of Senator Martinez). With no
discussion, the Senate voted to pass House Bill 2726 with 53 ayes, no nays, to adopt
the bill. 98th Ill. Gen. Assem., Senate Proceedings, May 14, 2013, at 96 (statements
of Senator Link).
¶ 42 This acknowledgment that the text of the Act was proposed by a professional
accounting organization, combined with a virtually unanimous vote, indicates that
the legislature intended to defer to the profession’s own formulation of the policies
and standards that should govern it. The impetus behind the adoption of this bill and
the amendments therein came from the accounting profession, not a legislative
concern about evidentiary rules of civil procedure or client privilege.
¶ 43 One of the amendments made by Public Act 98-254 was to change the title of
section 27 from “Accountant as witness” to “Confidentiality of licensee’s and
registrant’s records.” We have observed that while a statute’s title cannot be used to
limit the plain meaning of statutory text, it can provide guidance in resolving
statutory ambiguities. Alvarez v. Pappas, 229 Ill. 2d 217, 230-31 (2008). This new
title, which refers to the accountant’s records, not to the client’s information,
suggests that the intent of the drafters—the Illinois Certified Public Accountant
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Society—was to confer the privilege on the accountant for the purpose of
maintaining confidentiality of information contained in the accountant’s records if
that information was “obtained by him in his confidential capacity” as a CPA. The
legislature adopted this proposed change in title without discussion or amendment,
thereby deferring to the Society as the proper arbiter of professional standards and
conduct for accountants.
¶ 44 Finally, Brunton calls our attention to a section of the Administrative Code
titled “Confidential Client Information,” which provides that “[a] registered public
accountant shall not disclose any confidential client information without the
specific consent of the client.” 68 Ill. Adm. Code 1430.3010(a) (2005). This
language, she asserts “expressly provides that a client can waive the accountant
privilege,” which, she asserts, means that the client holds the privilege.
¶ 45 She conflates the accountant’s duty of confidentiality, which is owed to the
client, with the statutory privilege under which the accountant “shall not be
required by any court to divulge information or evidence which has been obtained
by him in his confidential capacity as a licensed or registered [CPA].” 225 ILCS
450/27 (West 2012). While the client may waive the duty of confidentiality, this
does not mean that the client may waive the accountant’s privilege. In short, the
duty of confidentiality does not inform our statutory analysis of section 27.
¶ 46 We hold that the privilege created by section 27 of the Public Accounting Act is
held by the accountant and may be asserted or waived by him. The meaning of the
statutory language is plain, and our reading of it recognizes the legislative choice to
treat this privilege differently than others in the legislative scheme regarding
privileges. If the legislature would prefer to bring the accounting privilege into line
with the other privileges created by the various acts in chapter 225, it may do so by
amending section 27.
¶ 47 If the client is still living, the privilege does not bar the client from voluntarily
producing the information. If the client is involved in litigation and the information
is otherwise discoverable, a court may order the client who is in possession of the
information to disclose it. See, e.g., Stopka, 816 F. Supp. 2d at 525 (“Plaintiffs
cannot rely on a privilege that belongs to their accountant to protect documents that
they themselves possess.”); Western Employers, 492 F. Supp. at 55 & n.2
(documents in the possession of the client are not privileged and must be produced;
client is not required to obtain documents from the accountant any papers not
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currently in the client’s possession). If, however, the client is deceased and the
accountant invokes the privilege, the information, which may be highly relevant in
the litigation, may not be available.
¶ 48 Testamentary Exception
¶ 49 Both the circuit court and the appellate court found that the accountant privilege
is subject to a testamentary exception and that the exception would apply in this
case due to the nature of the underlying dispute. They did so by analogy to the
testamentary exception that this court has recognized in the context of
attorney-client privilege.
¶ 50 Just as the interpretation of statutory language is a question of law, the
existence of an exception to a statutory legal rule is also a question of law, and our
review is de novo. Fields, 2014 IL 115542, ¶ 32.
¶ 51 The testamentary exception to the attorney-client privilege is well settled law.
In Wilkinson v. Service, 249 Ill. 146, 150-51 (1911), this court held that while
conversations between an attorney and a deceased client might be privileged when
offered in support of a claim against the client’s estate, the conversations would be
admissible in a will contest brought by his daughter, who received nothing under
the will, claiming that the decedent was not of sound mind when he made the will.
¶ 52 In its analysis of this question, the appellate court in the present case cited its
own earlier decision in Lamb v. Lamb, 124 Ill. App. 3d 687 (1984), which, in turn,
relied on Wilkinson. After noting that during her lifetime, the decedent, Bessie
Lamb, could have asserted a privilege against disclosure of conversations she had
with her attorney, the court announced the following holding with regard to the
attorney-client privilege after the death of the client:
“While upon the death of the client, the [attorney-client] privilege survives
in favor of his estate in regard to claims by outsiders against the estate
[citation], it does not apply to a communication relevant to an issue between
parties who claim through the same deceased client, regardless of whether the
claims are by testate or intestate succession or by inter vivos transaction. ***
While it had been suggested that the attorney may not disclose facts which
would tend to invalidate the will [citation], and that he may not disclose
confidential communications [citation], the actual holding of the cases which
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pass upon the point has been that neither side may assert the privilege.”
(Emphasis and internal quotation marks omitted.) Id. at 693.
¶ 53 Because Lamb involved a will contest among the children of the decedent, and
because all parties were either her devisees or claimed through her by inter vivos
transaction or by testate or intestate succession, the court held that the
attorney-client privilege was not applicable and, therefore, the attorney’s testimony
as to his conversations with the decedent should have been admitted. Id. at 694.
¶ 54 More recently, this court observed:
“[G]enerally the attorney-client privilege survives the client’s death.
[Citations.] A different rule applies, however, with respect to a will. In such a
case, there is only a temporary privilege. [Citation.] Where an attorney prepares
a will for a client and witnesses the same, the privilege only exists during the
lifetime of the client. [Citation.] The rationale behind this limited exception to
the privilege is that a decedent would (if one could ask him) forgo the privilege
so that the distribution scheme he actually intended can be given effect.”
DeHart v. DeHart, 2013 IL 114137, ¶ 69.
¶ 55 The analogy to the present case is clear, but with one major difference. The
privilege at issue here is the statutory accountant privilege. The attorney-client
privilege is a common law doctrine, and its testamentary exception is also a
common law rule. Nevertheless, the appellate court concluded that there was “no
reason” to treat the accountant’s privilege any differently from the attorney-client
privilege when the CPA assisted the client with estate planning. 2014 IL App (4th)
130421, ¶ 46.
¶ 56 Tibble argues that it is inappropriate to “graft” a common law exception onto a
statutory rule, noting the often repeated principle of statutory construction that we
“will not depart from the plain statutory language by reading into it exceptions,
limitations, or conditions that conflict with the expressed intent of the legislature.”
Gaffney, 2012 IL 110012, ¶ 56.
¶ 57 The executor and beneficiaries echo the appellate court’s reasoning, asserting
that “individuals whose accountants assist in the estate planning process should
receive no greater benefit in litigation than individuals who have their estate plans
prepared solely by a licensed attorney.” They also argue that recognizing a
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testamentary exception would be consistent with Illinois’s public policy of
encouraging disclosure in litigation.
¶ 58 Beginning, as we must, with the language of the statute, we note that section 27
contains a single exception: “This Section shall not apply to any investigation or
hearing undertaken pursuant to this Act.” 225 ILCS 450/27 (West 2012).
¶ 59 Citing People ex rel. Department of Professional Regulation v. Manos, 202 Ill.
2d 563 (2002), Tibble argues that the existence of this single, narrow exception in
the statute indicates a legislative intent that no other exceptions be made. In Manos,
the Department of Professional Regulation sought to enforce a subpoena
duces tecum against several periodontists who were under administrative
investigation. Id. at 566. The specific issue addressed by this court was whether the
statutory physician-patient privilege (735 ILCS 6/8-802 (West 2000)), barred
disclosure of patient records. Manos, 202 Ill. 2d at 568.
¶ 60 We noted that the statutory privilege was “not limitless” and that the legislature
had “specifically delineated 10 exceptions in which the privilege may yield,” none
of which referred to investigations by the Department. Id. Thus, we observed:
“To hold as the Department suggests would force this court to read a provision
into the Civil Administrative Code that is not there and to read an exception into
the physician-patient privilege statute that also is not there. This we are not
prepared to do because ‘ “[t]he only legitimate function of the courts is to
declare and enforce the law as enacted by the legislature, to interpret the
language used by the legislature where it requires interpretation, and not to
annex new provisions or substitute different ones, or read into a statute
exceptions, limitations, or conditions which depart from its plain meaning.” ’ ”
Id. at 568-69 (quoting Bronson v. Washington National Insurance Co., 59 Ill.
App. 2d 253, 261-62 (1965), quoting Belfield v. Coop, 8 Ill. 2d 293, 307
(1956)).
¶ 61 After establishing that the periodontists, as dental surgeons, fell within the
ambit of the statutory privilege (id. at 574), we held that “investigations conducted
by the Department are not listed as an exception under the physician-patient
privilege to compel physicians and surgeons to produce confidential patient
records.” Id. at 567-77. Thus, we declined to accept the Department’s invitation to
recognize a judge-made exception to the privilege. Id.
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¶ 62 Manos provides an exact parallel to the present case. Section 27 contains a
single exception. Under this exception, if an accountant is the subject of a
professional disciplinary investigation or hearing, he cannot claim the privilege.
We are not inclined to create another exception to the statutory rule. See also
Snyder v. Poplett, 98 Ill. App. 3d 359 (1981) (holding that the common law
testamentary exception did not apply to the statutory clergy privilege and that a
pastor, therefore, did not have to testify in a will contest regarding one of his
congregants).
¶ 63 We must, therefore, reject the Estates’ and beneficiaries’ public policy
argument that the two professions, accounting and law, should be treated similarly
in the context of a will contest merely because a testamentary exception to privilege
aids the search for truth.
¶ 64 The existence of a statutory privilege of any kind necessarily means that the
legislature has determined that public policy trumps the truth-seeking function of
litigation in certain circumstances. See FMC Corp., 236 Ill. App. 3d at 358 (“In
considering any privilege, we must be mindful that privileges, by their nature, tend
to adversely affect the fact-finding process and often stand as a barrier against
illumination of truth. Therefore, privileges are not to be expansively construed
because they are exceptions to the general duty to disclose during discovery.”).
¶ 65 Thus, when considering whether the spousal privilege should be expanded to
include other immediate family members, specifically a child, this court stated:
“The expansion of existing testimonial privileges and acceptance of new
ones involves a balancing of public policies which should be left to the
legislature. A compelling reason is that while courts, as institutions, find it easy
to perceive value in public policies such as those favoring the admission of all
relevant and reliable evidence which directly assist the judicial function of
ascertaining the truth, it is not their primary function to promote policies aimed
at broader social goals more distantly related to the judiciary. This is primarily
the responsibility of the legislature. To the extent that such policies conflict
with truthseeking or other values central to the judicial task, the balance that
courts draw might not reflect the choice the legislature would make.” People v.
Sanders, 99 Ill. 2d 262, 271 (1983).
¶ 66 We therefore agree with the statement of the appellate court in FMC Corp.,
that:
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“Our legislature has determined that the accountant-client relationship is one of
substantial significance and by enactment of section 27 encourages people to
make use of professional accounting services and to be frank and candid with
such professionals. Accordingly, it is critical to our analysis that we do not
carve out a series of exemptions that would emasculate the straightforward
language of section 27.” FMC Corp., 236 Ill. App. 3d at 358-59.
¶ 67 We hold that the testamentary exception to attorney-client privilege may not be
used to defeat the accountant privilege of section 27 of the Public Accounting Act.
We will not read in an additional exception to a statute that contains only one
express exception, indicating a legislative intent to limit exceptions to that single
instance. The creation of such an exception is a matter for the legislature.
¶ 68 Brunton argues that the existence of a testamentary exception to the accountant
privilege is “immaterial,” because determining the validity of the wills and trusts is
“more important” than the statutory privilege. She asserts that her claim of undue
influence exerted over her parents is more important than the privilege and that it is
“something which the law should look into.” In effect, she asks this court to create
an exception to the privilege without calling it the testamentary exception. She cites
the “wisdom” of this court’s decision in People ex rel. Birkett v. City of Chicago,
184 Ill. 2d 521 (1998), without analysis or argument, as her only support for her
assertion that this court should ignore the plain language of a statute because her
claim is more important than the policy established by the legislature or the duty of
the judiciary to give effect to clear statutory language. In any event, Birkett does not
support her position. In that case, we were asked to recognize a “deliberative
process privilege” to protect certain advice and discussions between government
officials concerning formulation of governmental decisions and policy. We
declined, stating that the adoption of such a privilege was “best left to the
legislature.” Id. at 522-23.
¶ 69 Because the statutory privilege is held by the accountant, the accountant has
invoked the privilege, and there is no exception to the privilege that would compel
the accountant to divulge the information, we turn to the question of waiver.
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¶ 70 Waiver of the Privilege
¶ 71 The circuit court ruled that Striegel waived the privilege by complying with the
subpoena issued by the Estates, reasoning that because the accountant did not assert
privilege with respect to one party in the will contest, he could not assert privilege
as to the other party. The appellate court, because it held that the privilege was not
held by the accountant, did not consider this question.
¶ 72 Our standard of review is de novo. When the facts are not in dispute and
credibility of witnesses is not implicated, the question of whether waiver has taken
place is a legal one and no deference is owed to the trial court’s decision. See
People v. Bannister, 232 Ill. 2d 52, 66 (2008) (applying de novo standard of review
to question of defendant’s waiver of right to jury trial).
¶ 73 Tibble argues that Striegel’s disclosure to the Estates does not constitute waiver
of the privilege as to Brunton, because the disclosure was made to a party with a
common interest, not to an adverse party.
¶ 74 The executor and beneficiaries argue waiver by Striegel based on failure to
invoke the privilege in response to the Estates’ subpoenas. The Estates deny that
they share a common interest with Striegel.
¶ 75 Brunton also denies that Striegel and the Estates share a common interest. Her
allegations of undue influence are against Robert and his wife, not against Striegel,
which has no interest in her parents’ estates. She suggests that if Striegel and the
Estates had a common interest, the accountant would have disclosed the
information to the Estates without the need for a subpoena. She also states that
Striegel is a defendant in a separate lawsuit brought by the executor, but she does
not support this assertion with any documentation. Finally, she argues that Striegel
has forfeited the claim of common interest by not raising it in the circuit court.
¶ 76 We reject Brunton’s forfeiture claim, finding that Tibble properly preserved the
waiver issue in the circuit court, the appellate court, and in his petition for leave to
appeal to this court. Even if he did not make a common interest argument in the
circuit court, he disputed the issue of waiver. We require parties to preserve issues
or claims for appeal; we do not require them to limit their arguments here to the
same arguments that were made below.
¶ 77 We must first determine whether the common interest doctrine applies when
the alleged common interest is shared by an accountant asserting the privilege of
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section 27 and one of two parties to litigation, both of whom seek disclosure of the
privileged information.
¶ 78 Neither this court nor our appellate court has considered the application of the
common interest doctrine in this context. The federal court in Stopka stated that the
“accountant-client privilege does not extend to communications that are disclosed
to third parties unless those parties have a common interest with the disclosing
party.” Stopka, 816 F. Supp. 2d at 524. However, the authority cited in Stopka for
this statement is this court’s decision in October 1985 Grand Jury, which makes no
mention of common interests. Id. (citing In re October 1985 Grand Jury No. 746,
124 Ill. 2d at 475).
¶ 79 The common interest doctrine is rooted in the dual representation doctrine,
which has a long history as an exception to attorney-client privilege. In Griffin v.
Griffin, 125 Ill. 430 (1888), this court held that when the grantor and grantee
brought a deed to an attorney, already signed and acknowledged, and asked his
opinion as to what was necessary to convey the title, statements made to the
attorney by the parties in the presence of each other were not confidential
communications, and the attorney could testify regarding those statements in a later
suit to set aside the deed. Id. at 436.
¶ 80 This court adopted the common interest doctrine in Waste Management, Inc. v.
International Surplus Lines Insurance Co., 144 Ill. 2d 178 (1991). At issue were the
respective rights and liabilities of insureds and insurers in an underlying case
involving environmental damage. Id. at 185-86. The insurers sought discovery of
the insureds’ litigation files in the underlying environmental litigation. Id. at 187.
The insureds’ attorney denied the court’s order to produce the files and was held in
contempt, creating an issue for appeal. Id.
¶ 81 This court first held that the cooperation clause in the insurance contracts
imposed “a broad duty of cooperation and is without limitation or qualification.”
Id. at 192. Further, “it cannot seriously be contended that insureds would not be
required to disclose contents of any communications they had with defense counsel
representing them on a claim for which insurers had the ultimate duty to satisfy.”
Id. Because this was a sufficient basis for finding that the attorney-client privilege
did not prevent disclosure of the requested information, the discussion that
followed regarding the common interest doctrine was not necessary to the
resolution of the case. Nevertheless, this court stated:
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“Evidence scholars have variously stated that under the common interest
doctrine, when an attorney acts for two different parties who each have a
common interest, communications by either party to the attorney are not
necessarily privileged in a subsequent controversy between the two parties. (M.
Graham, Cleary & Graham’s Handbook of Illinois Evidence § 505.7, at 277
(5th ed. 1990); McCormick, Evidence § 91, at 219 (3d ed. 1984); 8 J. Wigmore,
Evidence § 2312, at 603 (McNaughton rev. 1961).)” Id. at 193.
Because both the insurers and the insureds had a common interest in defeating or
settling the claim against the insureds in the underlying environmental litigation,
this court concluded that “the communication by insureds with [their] defense
counsel is of a kind reasonably calculated to protect or further those common
interests.” Id. at 194.
¶ 82 This court noted that in the “typical case, where the common interest doctrine
has been relied upon to defeat a claim of privilege, the attorney has provided joint
or simultaneous representation of the parties.” Id. However, we concluded that “the
doctrine may properly be applied where the attorney, though neither retained by nor
in direct communication with the insurer, acts for the mutual benefit of both the
insured and the insurer.” Id.
¶ 83 What Tibble overlooks is that the common interest doctrine is not intended to
protect a claim of attorney-client privilege or to defeat a claim of waiver of that
privilege. Rather, it is intended to defeat a claim of privilege when both parties to a
lawsuit share a common interest in the communications made in confidence by one
of the parties to its attorney. Thus, even if we were to hold that the common interest
doctrine applies to the accountant privilege as it does to the attorney-client
privilege, it would not support Striegel’s refusal to disclose information to Brunton.
Indeed, given the Estates’ position that the information should be provided to
Brunton, the common interest doctrine favors disclosure because she and the
Estates share a common interest in the contents of communications made by the
Krugers to Striegel.
¶ 84 Moreover, Tibble’s blind assertion that there is no dispute that the Estates share
a common interest with Striegel that is adverse to Brunton is unsupported by any
reasoning. He appears to be asserting that his interest is in preserving the Krugers’
confidences and that because the Estates “stand in their shoes,” the Estates must
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share that interest. He fails to acknowledge that the Estates actively seek disclosure
of the information.
¶ 85 The waiver analysis in this case is actually much simpler than the parties
acknowledge. The accountant who held the privilege disclosed it to one party in the
underlying litigation. Although he did so in response to a subpoena, he does not
assert that the disclosure was involuntary. Indeed, he claims to share a common
interest with the party to which he made the disclosure.
¶ 86 This court has stated that the attorney-client privilege is waived when the client,
the holder of the privilege, voluntarily discloses or consents to the disclosure of
privileged information. Center Partners, Ltd. v. Growth Head GP, LLC, 2012 IL
113107, ¶ 35 (“The basic, well-settled rule is that when a client discloses to a
third-party a privileged communication, that particular communication is no longer
privileged and is discoverable or admissible in litigation. Michael H. Graham,
Evidence: An Introductory Problem Approach 563 (2002) (‘The holder of the
privilege against disclosure of the confidential matter or communication waives the
privilege if he or his predecessor while holder of the privilege voluntarily discloses
or consents to disclosure of any significant part of the matter or communication
***.’) ”).
¶ 87 Where the accountant privilege is concerned, we have held that the accountant
is the holder of the privilege and may invoke it to prevent being compelled to
divulge client information. As in the case of attorney-client privilege, when the
holder of a privilege voluntarily discloses privileged information, he waives the
privilege.
¶ 88 We, therefore, hold that Striegel waived the accountant privilege by providing
the requested information to the personal representative of the Krugers’ Estates.
The firm, therefore, must comply with the court order to disclose the same
information to Brunton. We express no opinion as to the privileged nature or
waiver status of any information in Striegel’s possession that was not divulged to
the Estates.
¶ 89 CONCLUSION
¶ 90 For the foregoing reasons, we affirm the judgment of the appellate court,
finding, however, that the privilege created by the legislature in section 27 of the
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Public Accounting Act belongs to the accountant, not the client, and that there is no
testamentary exception to the privilege. Further, because the accountant waived the
privilege by disclosing information to one party in the underlying litigation, he
cannot claim the privilege to avoid disclosure of the same information to the other
party. See People v. Burnett, 237 Ill. 2d 381, 391 (2010) (this court is “in no way
constrained by the appellate court’s reasoning and may affirm on any basis
supported by the record”).
¶ 91 Appellate court judgment affirmed.
¶ 92 Circuit court judgment affirmed.
¶ 93 Cause remanded.
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