litigation privilege in Illinois

2025In O’Callaghan v. Satherlie, 2015 IL App (1st) 142152 , we adopted the Restatement (Second) of Torts’ approach to the litigation privilege, which provides: “An attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding.” Id. ¶ 24 (quoting the Restatement (Second) of Torts § 586 (1977)). ¶ 27 “The privilege applies to statements that are re

2025In O’Callaghan v. Satherlie, 2015 IL App (1st) 142152 , we adopted the Restatement (Second) of Torts’ approach to the litigation privilege, which provides: “An attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding.” Id. ¶ 24 (quoting the Restatement (Second) of Torts § 586 (1977)). ¶ 27 “The privilege applies to statements that are re

2019See O’Callaghan, 2015 IL App (1st) 142152, ¶¶ 25, 30 (“motives and diligence before taking the challenged actions are irrelevant for purposes of the litigation privilege” (citing Popp, 313 Ill.

2018See O'Callaghan , 2015 IL App (1st) 142152 , ¶¶ 25, 30, 394 Ill.Dec. 708 , 36 N.E.3d 999 ("motives and diligence before taking the challenged actions are irrelevant for purposes of the litigation privilege") (citing Popp , 313 Ill.App.3d at 642 , 246 Ill.Dec. 481 , 730 N.E.2d 506 , and Atkinson , 369 Ill.App.3d at 834 , 308 Ill.Dec. 186 , 861 N.E.2d 251 ); see also Johnson , 2014 IL App (1st) 122677 , ¶ 15, 379 Ill.Dec. 626 , 7 N.E.3d 52 .

2025In O’Callaghan v. Satherlie, 2015 IL App (1st) 142152 , we adopted the Restatement (Second) of Torts’ approach to the litigation privilege, which provides: “An attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding.” Id. ¶ 24 (quoting the Restatement (Second) of Torts § 586 (1977)). ¶ 27 “The privilege applies to statements that are re

2025Bedin, 2021 IL App (1st) 190723, ¶ 39 (“The absolute litigation privilege is an affirmative defense that may be raised and determined in a motion to dismiss brought under section 2-619.”). ¶ 36 As explained above, we determined that the litigation privilege applied to defeat the second element of a defamation claim (an unprivileged publication of an allegedly defamatory statement to a third party).

2025We must 7 1-24-1797 resolve all doubts regarding pertinency “in favor of finding the communication pertinent to the litigation.” Doe v. Williams McCarthy, LLP, 2017 IL App (2d) 160860, ¶ 19 . ¶ 28 Based on the foregoing, the litigation privilege applies if the allegedly defamatory statement is published (1) during a judicial proceeding (2) by an attorney who participates as counsel in that proceeding, and (3) the statement has some relation to the proceeding.

2025See, e.g., Doe, 2017 IL App (2d) 160860, ¶ 21 (rejecting plaintiff’s argument that the litigation privilege does not apply “where there are no safeguards against abuse, like the ability to discipline an attorney,” reasoning that “defendants’ actions occurred in a judicial proceeding, so the trial court could have imposed sanctions” based on attorney misconduct); O’Callaghan, 2015 IL App (1st) 142152, ¶ 31 (rejecting plaintiffs’ argument that “finding the privilege applies in circumstances [where there is attorney misconduct] *** leaves litigants without recourse and permits attorney misconduct

2018Ultimately, our courts have consistently made clear that "[a]n attorney must be at liberty to candidly and zealously represent his client in communications to potential opposing parties in litigation or other proceedings without the specter of civil liability for his statements clouding his efforts." Atkinson v. Affronti , 369 Ill.App.3d 828 , 833, 308 Ill.Dec. 186 , 861 N.E.2d 251 (2006). ¶ 18 Operationally, the litigation privilege affords an attorney complete immunity with respect to the communications he makes.

2018Ultimately, our courts have consistently made clear that "[a]n attorney must be at liberty to candidly and zealously represent his client in communications to potential opposing parties in litigation or other proceedings without the specter of civil liability for his statements clouding his efforts." Atkinson v. Affronti , 369 Ill.App.3d 828 , 833, 308 Ill.Dec. 186 , 861 N.E.2d 251 (2006). ¶ 18 Operationally, the litigation privilege affords an attorney complete immunity with respect to the communications he makes.

2025Although the restatement expressly refers to defamation, Illinois courts have extended the litigation privilege well beyond defamation claims because “[t]he absolute privilege would be meaningless if a recasting of the cause of action *** could void its effect.” Johnson, 2014 IL App (1st) 122677, ¶¶ 16-18 (quoting Barker v. Huang, 610 A.2d 1341, 1349 (Del. 1992) (applying the litigation privilege to negligent infliction of emotional distress, invasion of privacy, breach of contract and negligence claims); see also Kim v. State Farm Mutual Automobile Insurance Co., 2021 IL App (1st) 200135, ¶ 3

2018See O'Callaghan , 2015 IL App (1st) 142152 , ¶¶ 25, 30, 394 Ill.Dec. 708 , 36 N.E.3d 999 ("motives and diligence before taking the challenged actions are irrelevant for purposes of the litigation privilege") (citing Popp , 313 Ill.App.3d at 642 , 246 Ill.Dec. 481 , 730 N.E.2d 506 , and Atkinson , 369 Ill.App.3d at 834 , 308 Ill.Dec. 186 , 861 N.E.2d 251 ); see also Johnson , 2014 IL App (1st) 122677 , ¶ 15, 379 Ill.Dec. 626 , 7 N.E.3d 52 .

2002Validity of Creative Travel/Della Femina Litigation Medow first argues that the litigation privilege provided by section 587 of the Restatement does not apply in this case because the lawsuit brought by Flavin on behalf of Creative Travel was void ab initio pursuant to Supreme Court Rule 282(b), which expressly prohibits a "corporation [from] appear[ing] as claimant, assignee, subrogee or counterclaimant in a small claims proceeding, unless represented by counsel." See Berg v. Mid-America Industrial , 293 Ill.

2002Validity of Creative Travel/Della Femina Litigation Medow first argues that the litigation privilege provided by section 587 of the Restatement does not apply in this case because the lawsuit brought by Flavin on behalf of Creative Travel was void ah initio pursuant to Supreme Court Rule 282(b) (177 Ill. 2d R. 282(b)), which expressly prohibits a “corporation [from] appearing] as claimant, assignee, subrogee or counterclaimant in a small claims proceeding, unless represented by counsel.” See Berg v. Mid-America Industrial, 293 Ill.

2019In the only cases since that one that have returned to address the litigation privilege, both reaffirmed that the privilege immunizes “statements and conduct” (Doe v. Williams McCarthy, LLP, 2017 IL App (2d) 160860, ¶ 19 ), and that it applies to actions taken by an attorney in connection with potential litigation just as 6 We say “assuming” because, although the majority of the allegations in O’Callaghan clearly took place after litigation commenced (i.e., discovery violations, failing to disclose evidence, concealing evidence, contriving a bad-faith defense, etc.), it is not entirely clear t

2018In the only cases since that one that have returned to address the *251 *834 litigation privilege, both reaffirmed that the privilege immunizes "statements and conduct" ( Doe v. Williams McCarthy, LLP , 2017 IL App (2d) 160860 , ¶ 19, 419 Ill.Dec. 196 , 92 N.E.3d 607 ), and that it applies to actions taken by an attorney in connection with potential litigation just as it does to communications ( Gorman-Dahm v. BMO Harris Bank, N.A. , 2018 IL App (2d) 170082 , ¶¶ 29, 35, 419 Ill.Dec. 719 , 94 N.E.3d 257 ). ¶ 31 We further find no merit in plaintiffs' next assertion-namely, that the litigation p

2025Scarpelli, 2018 IL App (1st) 170874, ¶ 18 ; Golden v. Mullen, 295 Ill.

2025See Young v. Wilkinson, 2022 IL App (4th) 220302, ¶ 51 (“The danger in choosing not to bring any permissive counterclaim is that resolution of the earlier litigation may bar the later suit via res judicata, but only if the second suit might nullify the results of the first.”).

2025Although the restatement expressly refers to defamation, Illinois courts have extended the litigation privilege well beyond defamation claims because “[t]he absolute privilege would be meaningless if a recasting of the cause of action *** could void its effect.” Johnson, 2014 IL App (1st) 122677, ¶¶ 16-18 (quoting Barker v. Huang, 610 A.2d 1341, 1349 (Del. 1992) (applying the litigation privilege to negligent infliction of emotional distress, invasion of privacy, breach of contract and negligence claims); see also Kim v. State Farm Mutual Automobile Insurance Co., 2021 IL App (1st) 200135, ¶ 3

2025Although the restatement expressly refers to defamation, Illinois courts have extended the litigation privilege well beyond defamation claims because “[t]he absolute privilege would be meaningless if a recasting of the cause of action *** could void its effect.” Johnson, 2014 IL App (1st) 122677, ¶¶ 16-18 (quoting Barker v. Huang, 610 A.2d 1341, 1349 (Del. 1992) (applying the litigation privilege to negligent infliction of emotional distress, invasion of privacy, breach of contract and negligence claims); see also Kim v. State Farm Mutual Automobile Insurance Co., 2021 IL App (1st) 200135, ¶ 3

2022In re Detention of Swope, 213 Ill. 2d 210, 217 (2004). 15 court did not err in finding that the attorney litigation privilege applied to the Lawyer Defendants’ respective communications with SpearTip and Miller. ¶ 38 We next consider the plaintiffs’ contention that the litigation privilege did not apply to the Lawyer Defendants’ “illegal out-of-court conduct.” Initially, we note that the plaintiffs have not made specific allegations that the Lawyer Defendants committed a crime.

2021See, e.g., Van Meter v. Darien Park District, 207 Ill. 2d 359, 378-79 (2003) (denying motion to strike argument raised for the first time on reply in answer to argument advanced by moving party); see also People v. Roberson, 212 Ill. 2d 430, 440 (2004) (waiver rule is one of administrative convenience rather than a jurisdictional bar); accord People v. Lann, 261 Ill.

2021Id. ¶ 30 (“As stated, motives and diligence before taking the challenged actions are irrelevant for purposes of the litigation privilege.”); Scarpelli v. McDermott Will & Emery LLP, 2018 IL App (1st) 170874 , ¶¶ 30-31 (the privilege immunizes statements and conduct and “an attorney’s motives are irrelevant with respect to the applicability of the privilege, as is the reasonableness or unreasonableness of his conduct”); Kim v. Hoseney, 545 F. App’x 521, 522 (7th Cir. 2013) (recognizing absolute privilege under Illinois law against claims of fraud or intentional misrepresentations “for statement

2021See, e.g., Van Meter v. Darien Park District, 207 Ill. 2d 359, 378-79 (2003) (denying motion to strike argument raised for the first time on reply in answer to argument advanced by moving party); see also People v. Roberson, 212 Ill. 2d 430, 440 (2004) (waiver rule is one of administrative convenience rather than a jurisdictional bar); accord People v. Lann, 261 Ill.

2021See, e.g., Van Meter v. Darien Park District, 207 Ill. 2d 359, 378-79 (2003) (denying motion to strike argument raised for the first time on reply in answer to argument advanced by moving party); see also People v. Roberson, 212 Ill. 2d 430, 440 (2004) (waiver rule is one of administrative convenience rather than a jurisdictional bar); accord People v. Lann, 261 Ill.

2014In Zdeb v. Baxter International, Inc., 297 Ill.