Bill Daily, M.D., & Cardiothoracic Surgery Assocs., P.C. v. Greensfelder, Hemker & Gale, P.C. , 98 N.E.3d 604 ( 2018 )

2018 IL App (5th) 150384
NOTICE
Decision filed 02/07/18. The
text of this decision may be NO. 5-15-0384
changed or corrected prior to
the filing of a Peti ion for
Rehearing or the disposition of
IN THE
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
BILL DAILY, M.D., and CARDIOTHORACIC ) Appeal from the
SURGERY ASSOCIATES, P.C., ) Circuit Court of
) St. Clair County.
Plaintiffs-Appellants, )
)
v. ) No. 09-L-405
)
GREENSFELDER, HEMKER & GALE, P.C.; )
SSM HEALTHCARE CORPORATION; and )
SSM HEALTHCARE ST. LOUIS, ) Honorable
) Vincent J. Lopinot,
Defendants-Appellees . ) Judge, presiding.
______________________________________________________________________________
JUSTICE MOORE delivered the judgment of the court, with opinion.
Justice Welch concurred in the judgment and opinion.
Justice Chapman dissented, with opinion.
OPINION
¶1 The plaintiffs, Bill Daily, M.D., and Cardiothoracic Surgery Associates, P.C., appeal the
following orders of the circuit court of St. Clair County: (1) a July 13, 2015, order granting the
motion of the defendant, Greensfelder, Hemker & Gale, P.C. (Greensfelder), to compel the
production of certain documents the plaintiffs claim are protected by the attorney-client, work
product, and accountant-client privileges; (2) an August 18, 2015, order denying the plaintiffs’
motion to reconsider and finding the plaintiffs to be in contempt for failure to abide by the July
13, 2015, order granting the motion to compel; and (3) a September 10, 2015, order modifying
the August 18, 2015, order to impose a $50 fine upon the plaintiffs to facilitate the appeal of
1
these orders. On appeal, the plaintiffs argue that the circuit court erred in finding the “at issue”
and “subject matter waiver” exceptions to the attorney-client, work product, and accountant-
client privileges apply to allow for discovery of the documents at issue.
¶2 For the reasons that follow, we vacate the July 13, 2015, August 18, 2015, and September
10, 2015, orders and remand with directions that the plaintiffs produce all documents listed in its
privilege logs that are discoverable in light of our opinion. Further, should the plaintiffs, in good
faith, maintain privilege as to any of the documents in its privilege logs based on the principles
set forth in this opinion, the plaintiffs shall submit a privilege log that conforms to the
requirements of Illinois Supreme Court Rule 201(n) (eff. July 30, 2014). Finally, we direct that
in the event the parties are not able to resolve all issues between them with regard to the
documents at issue, and Greensfelder files a new motion to compel, the circuit court shall
evaluate the plaintiffs’ privilege log, conduct an in camera review of the disputed documents if
needed, and issue an order adjudicating their discoverability in light of our opinion.
¶3 FACTS
¶4 Although the instant lawsuit commenced on July 30, 2009, the operative complaint at the
time the circuit court entered the orders on appeal was the third amended complaint (complaint),
filed by leave of the circuit court on May 4, 2015. 1 We set forth the allegations of the complaint
in detail because we find them significant in analyzing the issues on appeal. According to the
complaint, Greensfelder was the primary provider of legal services for the plaintiffs, a
corporation providing cardiothoracic services to patients at various facilities, from its inception
in 1996. Beginning in 1997, Greensfelder represented the plaintiffs in negotiating and drafting
1
Greensfelder has included the plaintiffs’ motion for leave to file a fourth amended complaint and
proposed fourth amended complaint, filed in the circuit court on December 1, 2015, in the appendix to the
appellee’s brief. These documents are not part of the record on appeal and were not before the circuit
court at the time that it ruled on the orders at issue on appeal. Therefore, we will not consider them. See
Avery v. Sabbia, 301 Ill. App. 3d 839, 843-44 (1998).
2
employment agreements with various doctors, all of which included noncompete agreements. In
addition, Greensfelder represented the plaintiffs in negotiating, drafting, and executing
shareholder agreements with the doctors that were employed by the plaintiffs.
¶5 According to the complaint, Greensfelder simultaneously served as general counsel for
SSM Healthcare St. Louis (SSM), a not-for-profit healthcare organization that owns and operates
several medical facilities in the St. Louis, Missouri, region. In 2003, the plaintiffs agreed to
Greensfelder’s representation of both the plaintiffs and SSM during negotiations between them
for the purpose of achieving an agreement for the plaintiffs to become the exclusive provider of
cardiovascular surgery services at two of SSM’s facilities, DePaul and Kirkwood. The
agreements, which were drafted by Greensfelder, contained nonsolicitation clauses providing
that SSM would not employ the plaintiffs’ employees or physicians without the plaintiffs’
written consent.
¶6 The complaint further alleges that in 2006, the plaintiffs became the exclusive provider of
cardiovascular surgery services at two more of SSM’s facilities, despite the fact that at this time,
the plaintiffs did not have contracts with SSM governing this relationship because negotiations
remained ongoing. 2 Negotiations between the plaintiffs and SSM broke down in early 2007,
when Greensfelder communicated, to counsel for the plaintiffs and counsel for the plaintiffs’
employee doctors, a list of SSM’s “non-negotiables” regarding a proposed network agreement.
Following an exchange of letters between the attorney for the doctors and the plaintiffs’ counsel,
Laura J. Kipnis, a lawyer from the law firm of Stinson Morrison Hecker LLP (Stinson), the
doctors filed suit in the circuit court of St. Louis County, Missouri (the Missouri litigation),
2
Although not specifically alleged as a statement of fact in the complaint, it appears from
paragraph 29 of the complaint that Greensfelder is at least alleging it withdrew from its representation of
the plaintiffs on May 26, 2004.
3
seeking, inter alia, a declaratory judgment that the noncompete clauses in their respective
employment contracts were unenforceable.
¶7 The allegations of the complaint further state that, on March 6, 2007, Greensfelder filed a
motion, on behalf of SSM, to intervene in the Missouri litigation, seeking, inter alia, a
declaratory judgment that the nonsolictation clauses in the 2003 service contracts for DePaul and
Kirkwood, as well as the noncompete clauses in the employment contract between the plaintiffs
and the doctors involved in the Missouri litigation, were unenforceable, despite Greensfelder
having drafted those clauses. The plaintiffs filed a motion to disqualify Greensfelder from
representing SSM in the Missouri litigation due to a conflict of interest, but that motion was
never ruled upon due to a settlement of that litigation.
¶8 The complaint continues by alleging that, on May 16, 2007, settlement negotiations
occurred among all of the parties to the Missouri litigation, concluding with a memorandum of
understanding as to the settlement terms between the parties. This memorandum provided in part
for mutual releases of all parties from claims which were or could have been asserted in the
pending litigation, and Greensfelder drafted and inserted a provision that specifically included
itself as a released party.
¶9 Count I of the complaint alleges a cause of action against Greensfelder for breach of
fiduciary duty based upon the following actions on the part of Greensfelder: (1) representing a
party adverse to the plaintiffs in a substantially similar matter without first obtaining written
informed consent, (2) using information obtained during representation of the plaintiffs to their
disadvantage, (3) subordinating the plaintiffs’ interests to its own by, inter alia, including itself
as a released party in the settlement documents, (4) coordinating strategy and otherwise advising
attorneys with adverse interests to the plaintiffs, and (5) aiding and abetting SSM, as early as
4
May 2006, in SSM’s efforts to break up the plaintiffs’ practice or place the plaintiffs under
duress to influence them to breach their agreements with doctors that SSM wished to hire as its
own. According to counts I and II, one or more of these breaches by Greensfelder of its fiduciary
duty to the plaintiffs proximately caused “severe damage to [the] [p]laintiffs’ financial
well-being as well as [the] [p]laintiffs’ professional reputation, including, but not limited to, lost
compensation, lost income, past, present, and future, lost value, and lost past, present and future
business opportunities.” The remaining counts of the complaint allege causes of action against
SSM and its parent corporation for conspiracy and vicarious liability respectively.
¶ 10 During discovery, the plaintiffs requested that Greensfelder produce “all work done on
behalf of SSM” in the Missouri litigation. Greensfelder objected on the basis of the attorney-
client privilege and produced a lengthy privilege log. The plaintiffs filed a motion to compel,
seeking discovery of all the documents in the privilege log dated after October 4, 2006, the date
on which the plaintiffs alleged Greensfelder began coordinating strategy with attorneys
representing the physicians. The circuit court granted the motion to compel; Greensfelder
requested a finding of “friendly contempt,” which the circuit court granted; and Greensfelder
appealed to this court. This court affirmed the circuit court’s ruling, holding that because the
documents at issue related directly to “a matter on which Greensfelder attorneys provided
simultaneous representation to [the plaintiffs] and SSM,” the documents fell within the common
representation exception to the attorney-client privilege. Daily v. Greensfelder, Hemker & Gale,
P.C., 2014 IL App (5th) 130273-U, ¶ 24.
¶ 11 On February 20, 2015, Greensfelder filed a motion to compel production of documents.
In so doing, Greensfelder requested the circuit court find the plaintiffs had waived the attorney-
client, work product, and accountant-client privileges “with respect to their representation by
5
Sharon Daily; Stinson, Morrison, Hecker LLP (Stinson); and Padberg & Corrigan (Padberg)
during the time period in which [the] [p]laintiffs claim Greensfelder committed malpractice,[3]
and an order that the plaintiffs produce the documents identified on [the] [p]laintiffs’ privilege
logs.” In its motion to compel, Greensfelder pointed out that the plaintiffs allege Greensfelder
breached its fiduciary duty to them during its involvement in business deals, negotiations to
modify those deals, the Missouri litigation, and the settlement of the Missouri litigation.
Greensfelder further noted that the plaintiffs were represented by Daily, Stinson, and Padberg
during the same time period. Accordingly, Greensfelder argued that the plaintiffs placed at issue
the question of whether it was Greensfelder’s alleged breach of fiduciary duty, or the conduct of
the various attorneys who simultaneously represented the plaintiffs, that contributed to cause the
plaintiffs’ alleged damages.
¶ 12 Greensfelder attached the privilege logs concerning each attorney or law firm at issue to
its motion to compel, although the documents themselves are not contained in the record on
appeal, and it does not appear the circuit court ever conducted an in camera review of these
documents. While this court has not counted the combined number of documents contained
within the privilege logs at issue, it appears the plaintiffs’ statement at oral argument for this
appeal that “thousands of documents” are at issue is accurate. Each of the entries in the privilege
logs designate the privilege that is being asserted for that entry by the acronym “WP” for work
product, as well as “AC” for attorney-client privilege. 4 There does not appear to be a privilege
3
As previously outlined, the plaintiffs allege a cause of action for breach of fiduciary duty against
Greensfelder in this case, rather than one for malpractice. A footnote in Greensfelder’s motion to compel
acknowledges this fact, but states it chose to use “the more generic term ‘malpractice’ ” to refer to the
plaintiffs’ allegations against Greensfelder. When referring to Greensfelder’s arguments, we will use the
term “breach of fiduciary duty.”
4
Some of the entries in the privilege logs also indicate an acronym of “AL.” This court is unable
to find a place in the record that defines the acronyms, but notes the other privilege that appears to have
been asserted based on the pleadings and briefing is the accountant-client privilege.
6
log furnished by a certified public accountant (CPA). Rather, all of the documents contained
within the logs seem to be sourced from the files of Daily, Stinson, and Padberg.
¶ 13 In addition to the privilege logs themselves, Greensfelder attached plaintiffs’ answers to
Greensfelder’s interrogatories, dated May 18, 2011, to its motion to compel. In response to
Greensfelder’s interrogatory requesting the plaintiffs further itemize their claimed damages, the
plaintiffs stated the following:
“Plaintiff claims a host of legal fees, including but not limited to [a lawsuit involving the
right to utilize office space], [the Missouri] litigation, negotiation of the medical records
agreement which was never finalized by [Greensfelder], as well as additional settlement
expenses related to the foregoing. Plaintiff additionally claims increased malpractice
expenses as a result of the loss of their Missouri business, to go with the loss of business
advantages (this includes loss of economies of scale, loss of ability to effectively manage
staffing issues; and lost opportunities—such as with Medtronic, Guidant/Boston
Scientific, expansion to other hospitals, and addition of new technologies and
procedures). Plaintiff additionally overpaid its surgeons; had [the plaintiffs] known that
[Greensfelder] would torpedo as unenforceable non-competition and non-solicitation
provisions which they had drafted, plaintiff[s] would not have built [their] business
model in reliance on those provisions, and further, would not have incurred costs to
expand personnel. Additionally, plaintiff[s] w[ere] forced to settle the underlying
litigation at far less-than-fair value.”
¶ 14 Also, in the plaintiffs’ answers to interrogatories, when asked about all legal
representation the plaintiffs had “from 1998 to present,” the plaintiffs listed the following
relevant attorneys and/or law firms: (1) Greensfelder—March 1995 to May 2006, (2) Stinson—
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April 2006 to present, and (3) Padberg—March 2007 to January 2009. Further, Greensfelder
attached an excerpt from the deposition of Trevor Axford, M.D., to its motion to compel. In this
deposition excerpt, Dr. Axford testified that attorney Sharon Daily was the only attorney present
on behalf of the plaintiffs during negotiations that took place between the plaintiffs and its
employee doctors prior to the institution of the Missouri litigation.
¶ 15 As previously discussed, prior to any hearing on Greensfelder’s motion to compel, the
plaintiffs filed the operative complaint, with leave of court, on May 4, 2015. Although
Greensfelder’s answer and affirmative defenses to the third amended complaint do not appear in
the record, the plaintiffs acknowledged that Greensfelder filed this document in the plaintiffs’
memorandum in support of its motion to strike affirmative defenses, which the plaintiffs filed on
June 4, 2015.5 From the plaintiffs’ memorandum in support of its motion to strike Greensfelder’s
affirmative defenses, this court is able to glean that Greensfelder raised several affirmative
defenses to the plaintiffs’ third amended complaint. First, Greensfelder alleged the settlement
agreement between the parties in the Missouri litigation released Greensfelder from liability,
constituted waiver, was an accord and satisfaction of any liability on the part of Greensfelder,
and estopped the plaintiffs from asserting claims against Greensfelder. Second, Greensfelder
alleged the negligence of the plaintiffs’ attorneys leading up to and throughout the Missouri
litigation and its settlement caused or contributed to cause the plaintiffs’ damages. Third,
Greensfelder alleged the plaintiffs filed suit outside of a two-year statute of limitations, although
5
A review of the common law record in this case, as well as the recent review of common law
records in other St. Clair County cases, reveals the misfiling of a myriad of documents from other cases.
In this case, the plaintiffs’ memorandum of law in support of its motion to strike Greensfelder’s
affirmative defenses states, “[Greensfelder] has filed an answer to [the] [p]laintiffs’ [t]hird [a]mended
[c]omplaint.” However, Greensfelder’s answer and affirmative defenses are not present in the record,
leading this court to presume that these pleadings may have been misfiled in the common law record of
another St. Clair County case.
8
according to the plaintiffs’ motion to strike, Greensfelder did not specify which statute of
limitations applied to the plaintiffs’ causes of action.
¶ 16 On June 5, 2015, SSM filed a motion to dismiss the counts of the complaint that alleged
causes of action against SSM, pursuant to section 2-619.1 of the Code of Civil Procedure (Code).
735 ILCS 5/2-619.1 (West 2014). In the motion to dismiss, SSM argued, inter alia, that the
plaintiffs’ claims against SSM were barred by the release in the Missouri litigation, dated June
29, 2007, as well as by the two-year statute of limitations and/or the six-year statute of repose for
causes of action based on legal malpractice set forth in section 13-214.3 of the Code. 735 ILCS
5/13-214.3 (West 2014). 6
¶ 17 On June 30, 2015, following a hearing on pending motions, the circuit court entered an
order that, inter alia, denied the plaintiffs’ motion to strike Greensfelder’s affirmative defenses
and took Greensfelder’s motion to compel under advisement. On July 13, 2015, the circuit court
entered an order granting Greensfelder’s motion to compel, but made no findings of fact or
conclusions of law. Reading this order in conjunction with Greensfelder’s motion to compel, the
effect of this order was to compel the plaintiffs to produce all items on Daily, Stinson, and
Padberg’s privilege logs. On August 3, 2015, the plaintiffs filed a motion to reconsider the circuit
court’s ruling on Greensfelder’s motion to compel or, in the alternative, an objection to the
production of privileged documents and request for an order of friendly contempt. On August 18,
2015, the circuit court entered an order denying the plaintiffs’ motion to reconsider and finding
the plaintiffs to be in contempt of court for failing to produce the documents at issue. On
September 10, 2015, the circuit court entered an order modifying the August 18, 2015, order to
6
Greensfelder also filed a motion to dismiss the then-operative complaint on August 26, 2015,
based on the two-year statute of limitations set forth in section 13-214.3 of the Code. 735 ILCS 5/13­
214.3 (West 2014).
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reflect a $50 fine to be imposed upon the plaintiffs due to their contempt in failing to produce the
documents at issue. On September 11, 2015, the plaintiffs filed a notice of appeal.
¶ 18 ANALYSIS
¶ 19 Because the issues on appeal concern the application of privilege rules in discovery, our
standard of review is de novo. See Center Partners, Ltd. v. Growth Head GP, LLC, 2012 IL
113107, ¶ 27 (citing Norskog v. Pfiel, 197 Ill. 2d 60, 71 (2001)). The plaintiffs assert that the
issue on appeal is whether the circuit court properly ordered production of the documents at issue
based on the plaintiffs’ waiver of “the attorney-client, work product, and accountant-client
privileges.” However, in the remainder of their brief, the plaintiffs limit their analysis and
citation to authority to the issue of whether the plaintiffs waived the attorney-client privilege as
to those documents, making no argument and citing no authority specific to the work product and
accountant-client privileges. Illinois Supreme Court Rule 341(h)(7) (eff. July 1, 2008) provides
that the appellant’s brief must contain contentions along with citations to the authorities and
pages in the record relied upon. “A failure to cite relevant authority violates Rule 341 and can
cause a party to forfeit consideration of the issue.” Kic v. Bianucci, 2011 IL App (1st) 100622,
¶ 23. “However, a court may consider improperly raised issues in the interest of finding a just
result because Rule 341 is not a limitation on the court’s jurisdiction, but an admonishment to the
parties.” Id. In the interest of judicial economy as to the resolution of the discovery issues on
appeal, we choose to address the applicability of the doctrine of waiver as it applies to all three
privileges that have been asserted by the plaintiffs.
¶ 20 “Both attorney-client privilege and work product are provided for in our Rule 201(b)(2).”
Waste Management, Inc. v. International Surplus Lines Insurance Co., 144 Ill. 2d 178, 189
(1991) (citing Ill. S. Ct R. 201(b)(2) (eff. Aug. 1, 1989)). “However, they are separate and
10
distinct protections and waiver of one does not serve as waiver of the other.” Id. The accountant-
client privilege was created by statute (225 ILCS 450/27 (West 2014)) and is, therefore, also a
separate and distinct privilege. Accordingly, we will separately address the plaintiffs’ argument
that the plaintiffs have not waived these privileges as to the documents at issue.
¶ 21 1. “At Issue” Waiver of Attorney-Client Privilege
¶ 22 We begin with the issue of whether the documents referenced in Daily, Stinson, and
Padberg’s privilege logs are discoverable based on the “at issue” waiver of the attorney-client
privilege. “All matters that are privileged against disclosure on the trial, including privileged
communications between a party or his agent and the attorney for the party, are privileged
against disclosure through any discovery procedure.” Ill. S. Ct. R. 201(b)(2) (eff. July 30, 2014).
“Where legal advice of any kind is sought from a lawyer in his or her capacity as a lawyer, the
communications relating to that purpose, made in confidence by the client, are protected from
disclosure by the client or lawyer, unless the protection is waived.” Center Partners, Ltd., 2012
IL 113107, ¶ 30. Although this statement regarding the privilege “suggests that only
communications ‘by the client’ are protected from disclosure, the modern view is that the
privilege is a two-way street, protecting both the client’s communications to the attorney and the
attorney’s advice to the client.” People v. Radojcic, 2013 IL 114197, ¶ 40 (citing Edward J.
Imwinkelried, The New Wigmore: A Treatise on Evidence § 6.6.1, at 585 (2002)). “ ‘The
purpose of the attorney-client privilege is to encourage and promote full and frank consultation
between a client and legal advisor by removing the fear of compelled disclosure of
information.’ ” Waste Management, Inc., 144 Ill. 2d at 190 (quoting Consolidation Coal Co. v.
Bucyrus-Erie Co., 89 Ill. 2d 103, 117-18 (1982)).
11
¶ 23 While the attorney-client privilege serves a purpose that our supreme court has
characterized as “ ‘essential “to the proper functioning of our adversary system of justice” ’ ”
(Center Partners, Ltd., 2012 IL 113107, ¶ 30 (quoting In re Marriage of Decker, 153 Ill. 2d 298,
313 (1992), quoting United States v. Zolin, 491 U.S. 554, 562 (1989)), our supreme court has
also made clear that the attorney-client privilege is not without conditions, finding that it is the
privilege, not the duty to disclose, that is the exception. Waste Management, Inc., 144 Ill. 2d at
190 (citing Consolidation Coal Co., 89 Ill. 2d at 117-18). “Illinois adheres ‘to a strong policy of
encouraging disclosure, with an eye toward ascertaining that truth which is essential to the
proper disposition of a lawsuit.’ ” Center Partners, Ltd., 2012 IL 113107, ¶ 32 (quoting Waste
Management, Inc., 144 Ill. 2d at 190). Accordingly, “the privilege ought to be strictly confined
within its narrowest possible limits.” Waste Management, Inc., 144 Ill. 2d at 190.
¶ 24 While our supreme court has not had occasion to find an “at issue” exception to the
attorney-client privilege, it has clearly recognized that such an exception exists. See Center
Partners, Ltd., 2012 IL 113107, ¶ 35. Specifically, our supreme court has stated that the “at
issue” exception to the attorney-client privilege may be invoked “when the client voluntarily
injects into the case either a factual or legal issue, the truthful resolution of which requires
examination of confidential communications, such as legal malpractice actions.” Id. (citing
Fischel & Kahn, Ltd. v. Van Straaten Gallery, Inc., 189 Ill. 2d 579, 585 (2000), and Lama v.
Preskill, 353 Ill. App. 3d 300, 305 (2004)); see also Waste Management, Inc., 144 Ill. 2d at 191­
93 (recognizing the “at issue” exception applies where an attorney’s litigation files from
underlying litigation are “relevant and at issue in the present [litigation]”).
¶ 25 The plaintiffs recognize that “Illinois jurisprudence does not have a case with this exact
fact pattern.” Nonetheless, they point to what they characterize as “well established Illinois law,”
12
which they contend sets forth a standard by which a plaintiff does not waive the attorney-client
privilege by placing privileged material “at issue,” unless the plaintiff “actually discloses or
describes, i.e., in some way expressly relies upon, attorney[-]client communications in making
its claim.” We disagree and find the cases cited by Greensfelder—the most relevant of which is
the Illinois Supreme Court’s decision in Fischel & Kahn, Ltd., 189 Ill. 2d 579—to be
distinguishable.
¶ 26 In Fischel & Kahn, Ltd., the defendant, Van Straaten Gallery, Inc. (Van Straaten), filed a
counterclaim against the law firm of Fischel & Kahn, Ltd., for legal malpractice, alleging Fischel
& Kahn provided Van Straaten with negligent legal advice in 1986 regarding a liability limiting
contract provision the firm drafted for Van Straaten’s use in its contracts with consignment
artists. Id. at 582. According to Van Straaten’s counterclaim, Fischel & Kahn’s negligently
drafted contract provision subjected Van Straaten to defense and settlement costs in 1990
litigation brought by several consignment artists after Van Straaten’s building caught fire in
1989. Id. at 581. Fischel & Kahn raised several affirmative defenses, including contributory
negligence, assumption of risk, and accord and satisfaction based on Van Straaten’s settlement of
its own lawsuit against the parties responsible for the fire. Id. at 582.
¶ 27 Fischel & Kahn requested discovery of the litigation files of the law firm that represented
Van Straaten in the 1990 litigation, claiming that Van Straaten waived the attorney-client
privilege with respect to these files by placing them at issue in its counterclaim. Id. at 583.
According to Fischel & Kahn, these documents were placed “at issue” because, without the
documents, it would impossible to determine whether and to what extent Van Straaten’s loss
resulted from Fischel & Kahn’s alleged malpractice. Id. at 585. The circuit court agreed and
ordered Van Straaten to produce the files, and the appellate court affirmed. Id. at 583.
13
¶ 28 The Illinois Supreme Court disagreed with the courts below and reversed the order
requiring production of the documents evidencing communications between Van Straaten and
the law firm that represented it in the litigation brought by the consignment artists. Id. at 590.
The Illinois Supreme Court found the affirmative defenses that Fischel & Kahn asserted to
Van Straaten’s legal malpractice claim were insufficient to put the cause of Van Straaten’s
damages at issue, as the documents that Fischel & Kahn were seeking were documents
evidencing communications between Van Straaten and its “subsequent counsel”—that is,
counsel that represented Van Straaten after any alleged negligence on the part of Fischel & Kahn
was complete. Id. at 586-87. In support of this conclusion, our supreme court cited Jakobleff v.
Cerrato, Sweeney & Cohn, 468 N.Y.S.2d 895 (App. Div. 1983), and Miller v. Superior Court,
168 Cal. Rptr. 589 (Ct. App. 1980), both of which found no privilege with respect to
communications between a plaintiff and counsel that plaintiff retained after the completion of the
alleged malpractice on the part of the defendant lawyers.
¶ 29 In finding the attorney-client communications at issue in Fischel & Kahn, Ltd.,
undiscoverable and not “at issue,” our supreme court distinguished the facts before it from those
in Pappas v. Holloway, 787 P.2d 30 (Wash. 1990). 7 “In that case, the [Supreme Court of
Washington] held that when clients sued a former attorney for malpractice, the clients waived the
attorney-client privilege with respect to all attorneys involved in the underlying litigation.”
Fischel & Kahn, Ltd., 189 Ill. 2d at 588 (citing Pappas, 787 P.2d at 36). Our supreme court
explained the distinction between Fischel & Kahn, Ltd., and Pappas as follows:
7
We find it important to note that the Illinois Supreme Court in Fischel & Kahn, Ltd.,
distinguished the facts before it from Pappas, rather than rejecting the test set forth therein. Pappas set
forth a “relevant and vital” test for the “at issue” exception to the attorney-client privilege (787 P.2d at 36
(citing Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D. Wash. 1975))), which we find to be very close to the test
recognized by the Illinois Supreme Court in Center Partners, Ltd., 2012 IL 113107, ¶ 35 (truthful
resolution of fact or issue injected into the case by the plaintiff requires discovery).
14
“The [Pappas] court concluded that [the plaintiffs] could not bring an action against
Pappas for malpractice and at the same time protect from disclosure communications
made with other lawyers who also participated in the underlying litigation that gave rise
to [the plaintiffs’] malpractice claim. Distinguishing Miller and Jakobleff, the Pappas
court noted that the communications sought by Pappas took place during the time of the
alleged malpractice and involved lawyers who were also representing the clients in the
same matter when the malpractice allegedly occurred. [Citation.]
For these reasons, we believe that Pappas is distinguishable from [Fischel &
Kahn, Ltd.]. Here, no question exists regarding who allegedly committed the malpractice
complained of. There are no allegations in van Straaten’s counterclaim referring to
Fischel & Kahn’s conduct during the [underlying] litigation. Here, Fischel & Kahn’s
alleged negligence, occurring in 1986, was already complete at the time [subsequent
counsel] was retained. Thus, we do not perceive the same problem here as the Pappas
court did in determining who, among a number of different lawyers handling the same
matter simultaneously, might have committed the alleged malpractice.” (Emphasis
added.) Id. at 588-89 (citing Pappas, 787 P.2d at 34-35).
¶ 30 In addition to making the above-referenced distinction, the Fischel & Kahn, Ltd., court
rejected the notion that materials protected by the attorney-client privilege should be
discoverable in a legal malpractice action for the sole purpose of proving or disproving the
reasonableness of the decision to settle or the reasonableness of the amount of the settlement in
underlying litigation. Id. at 590. In such a case, as the Fischel & Kahn, Ltd., court recognized,
the protected materials would present one alternative means of proof on these issues. Id.
However, such communications would not be required to prove these issues because in Illinois
15
the test for the reasonableness of the decision to settle, as well as the amount of the settlement, is
objective rather than subjective. See Central Mutual Insurance Co. v. Tracy’s Treasures, Inc.,
2014 IL App (1st) 123339, ¶ 56. The test for whether the decision to settle is reasonable is
whether, considering the totality of the circumstances, a prudent litigant in the position of the
plaintiffs would have chosen to settle. Id. As to the reasonableness of the amount of the
settlement, the test is—considering the totality of facts surrounding the lawsuit, including the
risk of going to trial—what amount a reasonable litigant in the position of the plaintiffs would
have settled for on the merits of the claims of the doctors and SSM in the underlying lawsuit. See
id.
¶ 31 Based on our analysis of existing Illinois law, as set forth above, we find that documents
within Daily, Stinson, and Padberg’s files, as set forth in their respective privilege logs, may
contain communications that are required to be examined in order to truthfully resolve factual
and legal issues that have been injected into the instant litigation by the plaintiffs. See Center
Partners, Ltd., 2012 IL 113107, ¶ 35. Although the plaintiffs are not asserting a cause of action
for legal malpractice against Greensfelder, they are asserting a cause of action for breach of
fiduciary duty based on Greensfelder’s role as their prior counsel and its use of information
acquired in that role in its representation of an adverse party leading up to, during, and in
settlement of the Missouri litigation. An essential element of a claim for breach of fiduciary duty
is damages proximately caused by the breach. Huang v. Brenson, 2014 IL App (1st) 123231,
¶ 44. Accordingly, the case at bar is more like Pappas than Fischel & Kahn, Ltd., because there
is an issue of whether Greensfelder, Daily, Stinson, and Padberg contributed to cause the
Missouri litigation and its outcome and the relative contribution of each to the plaintiffs’
damages.
16
¶ 32 In order to truthfully resolve the factual and legal issues necessary to adjudicate the
causation element of the plaintiffs’ claims against Greensfelder, all communications between the
plaintiffs and Daily, Stinson, and Padberg that are related to the role Daily, Stinson, and Padberg
played in the events leading up to and including the plaintiffs’ defense of the Missouri litigation
are discoverable pursuant to the “at issue” exception to the attorney-client privilege. 8 However,
pursuant to the holding of our supreme court in Fischel & Kahn, Ltd., 189 Ill. 2d at 590,
documents evidencing communications between the plaintiffs and Daily, Stinson, and Padberg
that are relevant solely to the reasonableness of the plaintiffs’ decision to settle the Missouri
litigation, and the amount of that settlement, remain privileged because, for the above-stated
reasons, they are not “required to be examined in order to truthfully resolve” the causation
element of the plaintiffs’ claim against Greensfelder for breach of fiduciary duty. Instead, they
are relevant to the issue of the reasonableness of the settlement of the Missouri litigation, which,
as explained above, is subject to an objective measure of proof.
¶ 33 2. “At Issue” Waiver of Work Product Privilege
¶ 34 We turn now to the plaintiffs’ claim of work product privilege with respect to the
documents in the Daily, Stinson, and Padberg privilege logs. “Material prepared by or for a party
in preparation for trial is subject to discovery only if it does not contain or disclose the theories,
mental impressions, or litigation plans of the party’s attorney.” Ill. S. Ct. R. 201(b)(2) (eff. July
30, 2014). The work product privilege “is designed to protect the right of an attorney to
8
We note that the record reveals a potential issue regarding whether the plaintiffs brought their
breach of fiduciary duty claim against Greensfelder within the applicable statute of limitations. If the
plaintiffs were to confront this issue with a claim that the discovery rule applies to toll the statute of
limitations, then documents listed on the plaintiffs’ privilege log evidencing communications between the
plaintiffs and Daily, Stinson, and/or Padberg that are relevant to the time frame in which the plaintiffs
became aware of a cause of action against Greensfelder for breach of fiduciary duty would also fall within
the “at issue” exception to the attorney-client privilege. See Lama v. Preskill, 353 Ill. App. 3d 300, 306­
07 (2004) (citing Pyramid Controls, Inc. v. Siemens Industrial Automations, Inc., 176 F.R.D. 269, 271
(N.D. Ill. 1997)).
17
thoroughly prepare his case and to preclude a less diligent adversary attorney from taking undue
advantage of the former’s efforts.” Waste Management, Inc., 144 Ill. 2d at 196 (citing Hickman
v. Taylor, 329 U.S. 495 (1947)). “In the typical case, material is generated in preparation for trial
against an adversary who may seek disclosure of his opponent’s work product.” Id. at 197-98. It
is a much different case when such material is sought in subsequent litigation and that material is
either the basis of the subsequent lawsuit or the defense thereof. Id. at 199-200. This “at issue”
exception has been recognized by our supreme court as “wholly comport[ing] with our
commitment to full and fair disclosure and furtherance of the truthseeking process.” Id. at 200.
¶ 35 In this case, the documents set forth in the plaintiffs’ privilege log do not appear to be the
work product of counsel for the plaintiffs in the instant litigation. 9 Rather, Greensfelder is
seeking the work product of Daily, Stinson, and Padberg, which represented the plaintiffs at
various times leading up to and during the Missouri litigation, the same time period and litigation
in which the plaintiffs allege Greensfelder’s breaches of fiduciary duty caused them the loss of
their business. We find that the work product of Daily, Stinson, and Padberg relating to these
matters fits squarely within the “at issue” exception to the work product doctrine because it is the
basis of Greensfelder’s defense in this subsequent litigation that these attorneys played a role in
causing the plaintiffs’ damages. Greensfelder’s defense to the plaintiffs’ claim that
Greensfelder’s breach of fiduciary duty caused these damages centers around the role Daily,
Stinson, and Padberg’s representation of the plaintiffs may have played in the institution of the
Missouri litigation and its outcome. Accordingly, we find to be discoverable all documents on
Daily, Stinson, and Padberg’s privilege logs that contain work product of Daily, Stinson, and
Padberg in their representation of the plaintiffs with regard to negotiations with SSM, as well as
9
If there are any items in the privilege logs that do reflect work product of the attorneys
representing the plaintiffs in the instant litigation, the “at issue” exception would not extend to those
items.
18
negotiations with the doctors involved in the period of time leading up to the Missouri litigation,
during the Missouri litigation, and during its settlement.
¶ 36 3. Attorney-Client Communications Containing Work Product
¶ 37 We note virtually all of the entries in the Daily, Stinson, and Padberg privilege logs claim
to be protected from discovery by both the attorney-client and work product privileges.
However, a review of a random selection of the entries contained in the logs reveals, in many
cases, the document described therein does not appear to meet the definition of one or the other
of these privileges. 10 Nevertheless, we recognize there are many instances when a
communication between attorney and client would include mental impressions of the attorney,
and a number of the documents may, in fact, contain both types of information. Under the
modern view, such communications from attorney to client are protected by the attorney-client
privilege (see Radojcic, 2013 IL 114197, ¶ 40), as well as the work product privilege. See Ill. S.
Ct. R. 201(b)(2) (eff. July 30, 2014).
¶ 38 As set forth in detail above, the “at issue” exception to the work product privilege, when
considered in the context of subsequent litigation brought by a client, is broader than the “at
issue” exception to the attorney-client privilege. See Center Partners, Ltd., 2012 IL 113107,
¶ 35; accord Waste Management, Inc., 144 Ill. 2d at 199-200. While the “at issue” exception to
the work product privilege in subsequent litigation only requires the privileged material be the
basis of a claim or defense raised in the subsequent suit brought by the client, the “at issue”
exception to the attorney-client privilege can be invoked only if the privileged material is
required to truthfully resolve a factual or legal issue in the subsequent suit brought by the client.
Id. Accordingly, the question arises of which “at issue” exception applies to attorney-client
10
We will address this problem later in this opinion by directions to the parties and the court on
remand.
19
communications containing work product. We hold the test for the “at issue” exception to the
attorney-client privilege applies to such documents.
¶ 39 4. Accountant-Client Privilege
¶ 40 We now briefly turn to the plaintiffs’ assertion of the accountant-client privilege in
various entries on the Daily, Stinson, and Padberg privilege logs. The accountant-client privilege
was created by section 27 of the Illinois Public Accounting Act (225 ILCS 450/27 (West 2014)),
which provides as follows:
“Confidentiality of licensee’s and registrant’s records. 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. This Section shall not
apply to any investigation or hearing undertaken pursuant to this Act.”
¶ 41 The plain language of this statute, set forth above, provides for protection of information
provided to a certified public accountant (CPA). Accordingly, section 27 does not apply if
information is not obtained by an accountant in his capacity as a licensed or registered CPA.
Brunton v. Kruger, 2015 IL 117663, ¶ 18. There is nothing in the record to show that Daily,
Stinson, or Padberg are, in addition to attorneys and/or law firms, CPAs and/or accounting firms.
Unless this is the case, the accountant-client privilege does not extend to any of the items in the
Daily, Stinson, and Padberg privilege logs.
¶ 42 5. “Subject Matter Waiver”
¶ 43 We briefly address Greensfelder’s argument that all of the documents in Daily, Stinson,
and Padberg’s files are discoverable because the “subject matter waiver” of the attorney-client
privilege applies. According to our supreme court, subject matter waiver occurs when a client
offers his own or his attorney’s testimony as to a “ ‘specific communication’ ” to the attorney.
20
(Emphasis in original.) Center Partners, Ltd., 2012 IL 113107, ¶ 37 (quoting 8 John Henry
Wigmore, Evidence § 2327, at 638 (McNaughton rev. ed. 1961)). Such an offering waives the
privilege as to all other communications to the attorney on the same matter. Id. On the record
before us, we find the subject matter waiver exception to the attorney-client privilege is wholly
inapplicable to the documents at issue. Here, the plaintiffs listed Daily, Stinson, and Padberg in
their answers to Greensfelder’s interrogatories as persons with knowledge of the facts and
circumstances surrounding the plaintiffs’ claims. However, the plaintiffs have not disclosed these
attorneys and/or law firms on a list of witnesses expected to testify at trial, and there is no
evidence they have in any way offered Daily, Stinson, or Padberg’s testimony as to any of the
communications the plaintiffs are claiming as privileged. For these reasons, the “subject matter
waiver” does not apply.
¶ 44 6. Status of Orders Appealed From and Directions on Remand
¶ 45 Having set forth the standards for applying the “at issue” exception to documents
protected by the attorney-client privilege and the work product privilege, as well as the
inapplicability of the accountant-client privilege to information contained within the files of an
attorney, we turn to the orders on appeal. The circuit court’s July 13, 2015, order granted
Greensfelder’s motion to compel, the effect of which was to compel the plaintiffs to produce all
items on Daily, Stinson, and Padberg’s privilege logs. The August 18, 2015, order of the circuit
court denied the plaintiffs’ motion to reconsider and found the plaintiffs to be in contempt of
court for failing to produce the documents at issue. The September 10, 2015, order of the circuit
court imposed a $50 fine upon the plaintiffs for failing to produce the documents. Based on our
detailed analysis of the applicability of the asserted privileges, and our review of the privilege
logs themselves, it appears that some, but not necessarily all, of the documents set forth in the
21
privilege logs may be discoverable. Accordingly, we vacate all three orders of the circuit court
and remand with the following directions.
¶ 46 First, the plaintiffs must, based upon the analysis set forth in this opinion, reconsider their
position on all of the documents listed in the privilege logs and determine which documents, if
any, they must produce to Greensfelder, and which documents, if any, they continue to maintain
are privileged. With regard to those documents, if any, that the plaintiffs continue to maintain are
privileged, the plaintiffs must produce a new privilege log that conforms to the requirements of
Illinois Supreme Court Rule 201(n) (eff. July 30, 2014). Pursuant to Rule 201(n), the privilege
logs must describe the nature of the documents and list the exact privilege claimed. Id.
Accordingly, only communications between attorney and client that also contain the mental
impressions of the attorney should list both the attorney-client and work product privileges, and
the logs should contain only those documents for which the plaintiffs can make a good faith
argument, based on the law set forth in this opinion, that the “at issue” exception to the relevant
privilege does not apply.
¶ 47 Once the plaintiffs have produced those documents that, based on our opinion, are
required to be produced, as well as a new privilege log, Greensfelder may move the circuit court
to compel the production of any withheld documents to which it has a bona fide dispute
regarding the applicability of any stated privilege on the privilege log. The circuit court will then
rule on the applicability of the stated privilege based upon a review of the privilege log, or, if
requested and/or deemed necessary, an in camera review of the disputed documents, in light of
this opinion. In so doing, we note that the circuit court’s broad powers in regulating discovery
allow it to properly sanction either party if that party fails to comply with the directions set forth
herein or any subsequent order of the circuit court. See Ill. S. Ct. R. 201(c) (eff. July 30, 2014).
22
¶ 48 CONCLUSION
¶ 49 For the foregoing reasons, we vacate the July 13, 2015, August 18, 2015, and September
10, 2015, orders of the circuit court of St. Clair County and remand with directions that the
plaintiffs produce all documents listed in its privilege logs that are discoverable in light of our
opinion. Further, should the plaintiffs, in good faith, maintain privilege as to any of the
documents in its privilege logs based on the principles set forth in this opinion, the plaintiffs
shall submit a new privilege log that conforms to the requirements of Illinois Supreme Court
Rule 201(n) (eff. July 30, 2014). Finally, we direct that in the event the parties are not able to
resolve all issues between them with regard to the documents then at issue, and Greensfelder
files a new motion to compel, the circuit court shall evaluate the plaintiffs’ privilege log, conduct
an in camera review of the disputed documents if needed, and issue an order adjudicating their
discoverability in light of our opinion.
¶ 50 Vacated and remanded with directions.
¶ 51 JUSTICE CHAPMAN, dissenting:
¶ 52 I respectfully dissent. I disagree with the conclusion reached by my colleagues for two
reasons. First, I disagree with their conclusion that the instant case is more like Pappas than
Fischel & Kahn, Ltd. Second, I believe their framing of the at-issue exception to attorney-client
privilege is overly broad.
¶ 53 As my colleagues point out, the Illinois Supreme Court has yet to directly address the
scope of the at-issue exception to attorney-client privilege. However, as they also note, the court
has recognized that the exception exists. See Center Partners, Ltd., 2012 IL 113107, ¶ 35.
23
Typical examples of the at-issue waiver recognized in other jurisdictions include cases where a
party sues a former attorney for malpractice and cases where a party asserts as an affirmative
defense that the party relied on the advice of counsel. See Rhone-Poulenc Rorer Inc. v. Home
Indemnity Co., 32 F.3d 851, 863 (3d Cir. 1994).
¶ 54 Both Pappas and Fischel & Kahn, Ltd., involved the widely recognized principle that a
party who sues a former attorney for malpractice implicitly waives the attorney-client privilege
with respect to that attorney’s representation. The question facing both courts was under what
circumstances this waiver extends to other attorneys. See Pappas, 787 P.2d at 34; Fischel &
Kahn, Ltd., 189 Ill. 2d at 585. Although neither case is precisely analogous to the case before us,
I believe Pappas is distinguishable, and I believe that our supreme court’s rationale in Fischel &
Kahn, Ltd., supports the conclusion that the at-issue exception is not applicable here.
¶ 55 As noted in the majority opinion, the Pappas court held that “when clients sued a former
attorney for malpractice, the clients waived the attorney-client privilege with respect to all
attorneys involved in the underlying litigation.” Fischel & Kahn, Ltd., 189 Ill. 2d at 588 (citing
Pappas, 787 P.2d at 36). In finding the same result to be warranted here, I believe my colleagues
overlook the context in which the Pappas court reached this conclusion.
¶ 56 The defendants in Pappas were sued in three different lawsuits over the sale of cattle
infected with brucellosis. Pappas, 787 P.2d at 32. They hired multiple attorneys, including the
plaintiff, to represent them in those lawsuits. Id. The three actions were later consolidated, and
one of the other attorneys withdrew as counsel. Id. One month before trial, the plaintiff also
withdrew as counsel, and the defendants hired an additional attorney to help their remaining
counsel bring the case to trial. Subsequently, the plaintiff sued the defendants for unpaid attorney
fees. Id. The defendants filed a counterclaim alleging malpractice. Id. at 32-33. The plaintiff filed
24
third-party claims against all other attorneys who represented the defendants in the underlying
litigation. Id. at 33.
¶ 57 The plaintiff filed a motion to compel the third-party defendant attorneys to produce
documents relating to the underlying litigation. Id. The third-party defendants objected, arguing
that the documents were protected by attorney-client privilege. The trial court granted the motion
to compel, finding that the original defendants waived the privilege with respect to all attorneys
who represented them in the underlying action by filing a claim for malpractice against one of
those attorneys. Id.
¶ 58 On appeal, the defendants acknowledged that their malpractice claim waived the
privilege between themselves and the plaintiff. They argued, however, that “this waiver should
not automatically extend to include the third-party defendants as well.” Id. at 34. Before rejecting
this claim, the Pappas court expressed concern over “the danger of making illusory the attorney-
client privilege in legal malpractice actions.” Id. at 35. The court found that in spite of this
concern, the facts before it justified a finding of implied waiver as to all attorneys involved in
representing the defendants in the underlying litigation. Id. at 36.
¶ 59 The Pappas court reached this conclusion by applying the three-part test developed by a
federal district court in Hearn, 68 F.R.D. 574. Under that test, the at-issue exception applies if
(1) the party asserting the privilege takes some affirmative step, such as filing a lawsuit or
asserting an affirmative defense; (2) by doing so, that party makes the privileged information
“relevant to the case”; and (3) the privileged information is “vital” to the opposing party. Id. at
581. The Hearn court explained that communications are relevant for purposes of the second part
of the test if they are “not incidental to the case; they inhere in the controversy itself.” Id. at 582.
25
¶ 60 In applying the Hearn test to the facts before it, the Pappas court found that the first two
elements were satisfied because the defendants’ affirmative step of filing a counterclaim alleging
malpractice “caused malpractice to become an issue” in the case. Pappas, 787 P.2d at 36. The
court noted that the plaintiff’s third-party claims against the other attorneys did not interject any
new issues into the case because they were nearly identical to the defendants’ counterclaim. Id.
The court found that the third element of the Hearn test was met because allowing the defendants
to claim the privilege “would effectively deny [the plaintiff] an adequate defense.” Id. The court
explained that resolution of the malpractice issue “will necessarily involve information
communicated between [the other] attorneys and the Holloways.” Id. at 37. The court
emphasized that this was “particularly true given that Pappas was not the attorney who actually
tried the case, nor did he have any part in its eventual settlement.” Id.
¶ 61 It is in this regard I believe the instant case stands in stark contrast to Pappas. There, the
question of the plaintiff’s acts or omissions in the underlying litigation was inextricably linked to
the performance of the other attorneys who represented the defendants in the same litigation. The
same cannot be said of this case. Our supreme court distinguished Pappas from the case before it
in Fischel & Kahn, Ltd., on precisely this basis. The court noted that in Fischel & Kahn, Ltd.,
unlike in Pappas, there was “no question *** regarding who allegedly committed the
malpractice complained of.” Fischel & Kahn, Ltd., 189 Ill. 2d at 589. Here, likewise, there is no
question concerning who committed the alleged acts of fraud or the alleged breaches of
Greensfelder’s fiduciary duty to the plaintiffs. I believe this is the crux of the case.
¶ 62 Two more distinctions drawn by the Fischel & Kahn, Ltd., court bear discussion. First,
the court noted that Van Straaten made no allegations about its former counsel’s conduct during
the underlying fire litigation. Id. Here, the plaintiffs have alleged misconduct by Greensfelder
26
during the Missouri litigation. However, I do not believe this is a significant difference under the
facts of this case. In Fischel & Kahn, Ltd., the plaintiff law firm continued to represent
Van Straaten while the underlying litigation was proceeding. See id. at 581. It was therefore
important for the supreme court to note that nothing that firm’s attorneys did on behalf of
Van Straaten in that litigation was at issue. Here, Greensfelder and subsequent counsel never
represented the plaintiffs simultaneously in the same matter, as the various attorneys did in
Pappas. See id. at 589 (emphasizing this distinction). The fact that the alleged conduct at issue
was not complete before the Missouri litigation began does not change this crucial fact.
¶ 63 The final distinction drawn by the supreme court concerned the purpose for which the
privileged materials were relevant. The court found that the only question on which the
privileged information sought in that case was relevant was the question of damages. See id. at
589-90. The court explained that the privileged communications with subsequent counsel were
not vital to Fischel & Kahn on this question because the reasonableness of the settlement could
be determined through other evidence. Id. My colleagues conclude that this factor makes this
case more similar to Pappas than Fischel & Kahn, Ltd., because the question at issue here is the
proximate cause of the plaintiffs’ damages rather the reasonableness of the settlement. I disagree.
There, Fischel & Kahn argued that the privileged documents were necessary in order “to
determine whether and to what extent van Straaten’s alleged loss resulted from Fischel & Kahn’s
alleged” conduct. Id. at 585. That is precisely the argument Greensfelder makes here.
Greensfelder contends that the requested material might help it demonstrate that the settlement
amount was adversely impacted by some flaw in how the plaintiffs’ subsequent attorneys
handled the Missouri litigation rather than by its own alleged malfeasance. This is, in essence, a
claim that the plaintiffs accepted a settlement that was objectively unreasonable. As my
27
colleagues recognize, privileged information is not necessary to prove this. See id. For these
reasons, I believe that the instant case is more similar to Fischel & Kahn, Ltd., than Pappas.
¶ 64 The second reason I disagree with the conclusion reached by my colleagues is that I
believe they apply the at-issue exception too broadly. In Center Partners, Ltd., our supreme court
explained in dicta that under the at-issue exception, a client implicitly waives the privilege if the
client “voluntarily injects into the case either a factual or legal issue, the truthful resolution of
which requires examination of confidential communications.” Center Partners, Ltd., 2012 IL
113107, ¶ 35 (citing Fischel & Kahn, Ltd., 189 Ill. 2d at 585). However, because that case
involved subject matter waiver of the attorney-client privilege, another type of implied waiver,
the court did not consider the scope of the at-issue exception or formulate a test for its
application. See id. ¶¶ 37-62. I thus disagree with my colleagues’ interpretation of this language
as approving or recognizing a test similar to that applied by the Washington Supreme Court in
Pappas.
¶ 65 More importantly, I believe the majority holding expands the at-issue exception beyond
the limits approved by the courts in Hearn and Pappas. Neither the second nor third
requirements of the Hearn test are satisfied. Communications between the plaintiffs and their
subsequently-retained attorneys are not inherently relevant to their claims that Greensfelder
breached its fiduciary duty and committed fraud. See Hearn, 68 F.R.D. at 582. Further, the
defendants can demonstrate that their alleged misconduct did not cause all or part of the
plaintiffs’ alleged loss by showing that the settlement was objectively unreasonable. Thus, the
privileged information is not vital to their defense. See id. at 581.
¶ 66 It is important to note that both the Hearn and Pappas courts applied the at-issue
exception narrowly. The Hearn court explicitly stated that its test should apply only in “narrow
28
confines” in order to balance the important interest served by the attorney-client privilege with
the opposing party’s interest in vindicating his rights. Id. at 582. Similarly, the Pappas court
recognized the validity of the concerns raised by other courts over the dangers of applying the at-
issue exception too broadly, but found it to be warranted under the specific facts before it. See
Pappas, 787 P.2d at 35-36. In both cases, the privileged documents were central to issues raised
by the parties asserting privilege. Pappas involved a claim of malpractice against one of four
attorneys who served as co-counsel in the same underlying suit. The defendants in Hearn
asserted the affirmative defense of good faith—in other words, they alleged that they acted in
accordance with what they believed to be the applicable law. Hearn, 68 F.R.D. at 581 n.5 (citing
Wood v. Strickland, 420 U.S. 308, 321-22 (1975)). I do not believe either Pappas or Hearn
supports the majority’s finding of at-issue waiver in this case.
¶ 67 It is also worth noting that numerous courts—including the Second District of the Illinois
Appellate Court—have been critical of both Pappas and Hearn for carving out too broad an
exception to the attorney-client privilege. See, e.g., In re Estate of Wright, 377 Ill. App. 3d 800,
805-06 (2007); In re County of Erie, 546 F.3d 222, 227 (2d Cir. 2008); Rhone-Poulenc Rorer,
Inc., 32 F.3d at 863-64; Succession of Smith v. Kavanaugh, Pierson & Talley, 513 So. 2d 1138,
1145 (La. 1987). Notably, the Second District criticized Hearn “for focusing on the need of the
party seeking the information rather than the policy that the privilege serves.” In re Estate of
Wright, 377 Ill. App. 3d at 805. Although our supreme court did not reject Pappas or Hearn in
Fischel & Kahn, Ltd., it also expressed similar concerns. The court explained that allowing
Fischel & Kahn “to invade the attorney-client privilege with respect to subsequently retained
counsel” under the facts of that case “would render the privilege illusory.” Fischel & Kahn, Ltd.,
189 Ill. 2d at 586.
29
¶ 68 I believe the same reasoning is warranted in this case. The attorney-client privilege serves
the crucial purpose of encouraging full and frank discussions between attorneys and their clients.
Id. at 584-85. Expanding the implied waiver of the at-issue exception beyond the limits approved
in Pappas and Hearn undermines this important protection. Proximate cause is always an issue.
If a defendant may invade the privilege any time a plaintiff claims damages related to the
settlement of subsequent litigation merely by asserting that subsequently retained counsel may
have caused or contributed to the loss, the privilege would be rendered illusory in such cases. See
id. at 587-88. I would find that the plaintiffs did not waive the attorney-client privilege.
¶ 69 For these reasons, I would reverse the orders of the trial court.
30
2018 IL App (5th) 150384
NO. 5-15-0384
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
BILL DAILY, M.D., and CARDIOTHORACIC ) Appeal from the
SURGERY ASSOCIATES, P.C., ) Circuit Court of
) St. Clair County.
Plaintiffs-Appellants, )
)
v. ) No. 09-L-405
)
GREENSFELDER, HEMKER & GALE, P.C.; )
SSM HEALTHCARE CORPORATION; and )
SSM HEALTHCARE ST. LOUIS, ) Honorable
) Vincent J. Lopinot,
Defendants-Appellees. ) Judge, presiding.
Opinion Filed: February 7, 2018
_____________________________________________________________________________________
Justices: Honorable James R. Moore, J.
Honorable Thomas M. Welch, J., concurred
Honorable Melissa A. Chapman, J., dissented
_____________________________________________________________________________________
Attorneys Clyde L. Kuehn, 120 W. Main Street, Suite 122, Belleville, IL 62220;
for Christopher J. Petri, Byron, Carlson, Petri & Kalb, LLC, 411 St. Louis
Appellants Street, Edwardsville, IL 62025
_____________________________________________________________________________________
Attorneys Ted W. Dennis, Michael P. Murphy, Freeark, Harvey & Mendillo, P.C., 115
for W. Washington Street, P.O. Box 546, Belleville, IL 62222-0546; Michael L.
Appellees O’Donnell, Carolyn J. Fairless, Erin F. Frohardt, Wheeler, Trigg, O’Donnell,
LLP, 370 Seventeenth Street, Suite 4500, Denver, CO 80202 (attorneys for
Greensfelder, Hemker & Gale, P.C.); Alphonse J. Pranaitis, David A. Schott,
Rynearson, Suess, Schnurbusch & Champion, LLC, 107 Southpointe Drive,
Edwardsville, IL 62025 (attorneys for SSM Healthcare Corporation and SSM
Healthcare St. Louis)
_____________________________________________________________________________________