implied waiver in Illinois

2023We disagree. ¶ 31 “Implied waiver of a legal right must be proved by a clear, unequivocal, and decisive act of the party who is alleged to have committed waiver.” Id. “ ‘An implied waiver may arise where a person against whom the waiver is asserted has pursued such a course of conduct as to sufficiently evidence an intention to waive a right or where his conduct is inconsistent with any other intention than to waive it.’ ” Id. (quoting Kane v. American National Bank & Trust Co., 21 Ill.

2023“Implied waiver of a legal right must be proved by a clear, unequivocal, and decisive act of the party who is alleged to have committed waiver.” Ryder v. Bank of Hickory Hills, 146 Ill. 2d 98, 105 (1991). “ ‘An implied waiver may arise where a person against whom the waiver is asserted has pursued such a course of conduct as to sufficiently evidence an intention to waive a right or where his conduct is inconsistent with any other intention than to waive it.’ ” (Emphasis added.) Id. (quoting Kane v. American National Bank & Trust Co., 21 Ill.

2023Liberty Mutual Insurance Co. v. Westfield Insurance Co., 301 Ill.

2014Id.; Liberty Mutual Insurance Co. v. Westfield Insurance Co., 301 Ill.

2012However, even an implied waiver must be able to be “clearly inferred from the circumstances.” Id.

2007An implied waiver can occur in either of two situations: "`(1) an unexpressed intention to waive can be clearly inferred from the circumstances; or (2) the conduct of one party has misled the other party into a reasonable belief that a waiver has occurred.'" Northwest Diversified, Inc. v. Desai, 353 Ill.App.3d 378, 399-400 , 288 Ill.Dec. 818 , 818 N.E.2d 753 (2004), quoting Batterman v. Consumers Illinois Water Co., 261 Ill.App.3d 319, 321 , 199 Ill.Dec. 881 , 634 N.E.2d 1235 (1994).

2023We disagree. ¶ 31 “Implied waiver of a legal right must be proved by a clear, unequivocal, and decisive act of the party who is alleged to have committed waiver.” Id. “ ‘An implied waiver may arise where a person against whom the waiver is asserted has pursued such a course of conduct as to sufficiently evidence an intention to waive a right or where his conduct is inconsistent with any other intention than to waive it.’ ” Id. (quoting Kane v. American National Bank & Trust Co., 21 Ill.

2023We disagree. ¶ 31 “Implied waiver of a legal right must be proved by a clear, unequivocal, and decisive act of the party who is alleged to have committed waiver.” Id. “ ‘An implied waiver may arise where a person against whom the waiver is asserted has pursued such a course of conduct as to sufficiently evidence an intention to waive a right or where his conduct is inconsistent with any other intention than to waive it.’ ” Id. (quoting Kane v. American National Bank & Trust Co., 21 Ill.

2011The court further stated, “[i]n other words, an implied waiver occurs ‘where a party voluntarily injects either a factual or legal issue into the case, the truthful resolution of which requires an examination of the confidential communications.’ ” Id. -18- (quoting Pyramid Controls, Inc. v. Siemens Industrial Automations, Inc., 176 F.R.D. 269, 272 (N.D.

2011The court further stated, "[i]n other words, an implied waiver occurs `where a party voluntarily injects either a factual or legal issue into the case, the truthful resolution of which requires an examination of the confidential communications.'" Id. (quoting Pyramid Controls, Inc. v. Siemens Industrial Automations, Inc., 176 F.R.D. 269, 272 (N.D.Ill.1997)).

2007An implied waiver can occur in either of two situations: “ ‘(1) an unexpressed intention to waive can be clearly inferred from the circumstances; or (2) the conduct of one party has misled the other party into a reasonable belief that a waiver has occurred.’ ” Northwest Diversified, Inc. v. Desai, 353 Ill.

2007An implied waiver can occur in either of two situations: "`(1) an unexpressed intention to waive can be clearly inferred from the circumstances; or (2) the conduct of one party has misled the other party into a reasonable belief that a waiver has occurred.'" Northwest Diversified, Inc. v. Desai, 353 Ill.App.3d 378, 399-400 , 288 Ill.Dec. 818 , 818 N.E.2d 753 (2004), quoting Batterman v. Consumers Illinois Water Co., 261 Ill.App.3d 319, 321 , 199 Ill.Dec. 881 , 634 N.E.2d 1235 (1994).

2024Selby, 2020 IL App (1st) 181951, ¶¶ 179-80 . “[W]hen a party entitled to claim the attorney- client privilege uses confidential information against his adversary (the sword), he implicitly waives its use protectively (the shield) under that privilege.” Willy v. Administrative Review Board, 423 F.3d 483, 497 (5th Cir. 2005). ¶ 24 “An implied waiver may be found when the client asserts claims or defenses that put his or her communications with the legal advisor at issue in the litigation.” Center Partners, 2012 IL 6 No. 1-23-0901 113107, ¶ 66; see also In re Lott, 424 F.3d 446, 455 (6th Cir. 200

2024Selby, 2020 IL App (1st) 181951, ¶¶ 179-80 . “[W]hen a party entitled to claim the attorney- client privilege uses confidential information against his adversary (the sword), he implicitly waives its use protectively (the shield) under that privilege.” Willy v. Administrative Review Board, 423 F.3d 483, 497 (5th Cir. 2005). ¶ 24 “An implied waiver may be found when the client asserts claims or defenses that put his or her communications with the legal advisor at issue in the litigation.” Center Partners, 2012 IL 6 No. 1-23-0901 113107, ¶ 66; see also In re Lott, 424 F.3d 446, 455 (6th Cir. 200

2021App. 3d 311, 316 (1999) (applying the subjective analysis test and finding no waiver because the disclosure was inadvertent); Dalen, 230 Ill.

2021App. 3d 311, 316 (1999) (applying the subjective analysis test and finding no waiver because the disclosure was inadvertent); Dalen, 230 Ill.

2021App. 3d at 306 (finding an implied waiver under the express/implied waiver test where the plaintiff voluntarily injected into the case issues regarding communications with counsel); People v. Murry, 305 Ill.

2021App. 3d at 306 (finding an implied waiver under the express/implied waiver test where the plaintiff voluntarily injected into the case issues regarding communications with counsel); People v. Murry, 305 Ill.

2004Jur. 2d Insurance § 1054, at 978 (1969); see generally Stoltz v. National Indemnity Co., 345 Ill.

2004Jur. 2d Insurance §1054, at 978 (1969); see generally Stoltz v. National Indemnity Co. , 345 Ill.

1994App.3d 764, 771 , 169 Ill.Dec. 800, 805 , 592 N.E.2d 287, 292 .) The key to implied waiver in this case is establishing a clear inference, under the circumstances, of an intention to waive. ( Lavelle, 227 Ill.App.3d at 771 , 169 Ill.Dec. at 804 , 592 N.E.2d at 291 ; Whalen, 166 Ill.App.3d at 343 , 116 Ill.Dec. at 779 , 519 N.E.2d at 994 .) Implied waiver may be established when "the conduct of the person against whom waiver is asserted is inconsistent with any other intention than to waive []." Whalen, 166 Ill.App.3d at 343 , 116 Ill.

1994App. 3d 764, 771 , 592 N.E.2d 287, 292 .) The key to implied waiver in this case is establishing a clear inference, under the circumstances, of an intention to waive.

2025See Home Insurance Co., 213 Ill. 2d at 326 (indicating that an implied waiver occurs when the conduct of the person against whom waiver is asserted is inconsistent with any intention other than to waive the particular right at issue); Lehman, 265 Ill.

2023Id. at 326 An implied waiver arises when conduct of the insurer is inconsistent with any intention other than to waive it.

2011The court further stated, “[i]n other words, an implied waiver occurs ‘where a party voluntarily injects either a factual or legal issue into the case, the truthful resolution of which requires an examination of the confidential communications.’ ” Id. -18- (quoting Pyramid Controls, Inc. v. Siemens Industrial Automations, Inc., 176 F.R.D. 269, 272 (N.D.

2011The court further stated, "[i]n other words, an implied waiver occurs `where a party voluntarily injects either a factual or legal issue into the case, the truthful resolution of which requires an examination of the confidential communications.'" Id. (quoting Pyramid Controls, Inc. v. Siemens Industrial Automations, Inc., 176 F.R.D. 269, 272 (N.D.Ill.1997)).

2018Id. at 584-85 , 244 Ill.Dec. 941 , 727 N.E.2d 240 . *625 Expanding the implied waiver of the at-issue exception beyond the limits approved in Pappas and Hearn undermines this important protection.

2018Id. at 584-85 , 244 Ill.Dec. 941 , 727 N.E.2d 240 . *625 Expanding the implied waiver of the at-issue exception beyond the limits approved in Pappas and Hearn undermines this important protection.

1991See Kenilworth Insurance Co., 20 Ill.

1978(See Kenilworth Insurance Co. v. McDougal, 20 Ill.

2025Home Insurance Co, 213 Ill. 2d at 326 ; Lehman, 265 Ill.

2025See Home Insurance Co., 213 Ill. 2d at 326 (indicating that an implied waiver occurs when the conduct of the person against whom waiver is asserted is inconsistent with any intention other than to waive the particular right at issue); Lehman, 265 Ill.

2024“Waiver is the ‘voluntary and intentional relinquishment of a known and existing right. [Citation.] It can be express or implied, but the implied waiver of a legal right will only be found “when [the] conduct of the person against whom 12 1-22-0511 waiver is asserted is inconsistent with any other intention than to waive it.” [Citation.]’ Whether a party’s actions are sufficient to constitute waiver is a question of law we review de novo.” Matschke v. Uropartners, LLC, 2023 IL App (1st) 221112, ¶ 47 . ¶ 37 “[T]he doctrine of waiver is intended to prevent unfair surprise to one’s opponent when

2024Implied Waiver ¶ 22 Here, the trial court based its ruling on the doctrine of implied waiver of the attorney-client privilege, which holds that a client impliedly waives the privilege “ ‘when the client voluntarily injects into the case either a factual or legal issue, the truthful resolution of which requires examination of the communications.’ ” Selby, 2020 IL App (1st) 181951, ¶ 178 (quoting Center Partners, 2012 IL 113107, ¶ 35 ).

2024Selby, 2020 IL App (1st) 181951, ¶¶ 179-80 . “[W]hen a party entitled to claim the attorney- client privilege uses confidential information against his adversary (the sword), he implicitly waives its use protectively (the shield) under that privilege.” Willy v. Administrative Review Board, 423 F.3d 483, 497 (5th Cir. 2005). ¶ 24 “An implied waiver may be found when the client asserts claims or defenses that put his or her communications with the legal advisor at issue in the litigation.” Center Partners, 2012 IL 6 No. 1-23-0901 113107, ¶ 66; see also In re Lott, 424 F.3d 446, 455 (6th Cir. 200