attorney-client privilege in Illinois

2026As an exception to disclosure, the attorney-client privilege serves a valuable role in our legal system by “encourag[ing] and promot[ing] full and frank consultation between a client and legal advisor by removing the fear of compelled disclosure of information.” (Internal quotation marks omitted.) Waste Management, 144 Ill. 2d at 190 . ¶ 15 “The attorney-client privilege presumes that a client wishes his communications with his attorney to remain secret until proved otherwise.” Hitt v. Stephens, 285 Ill.

2021Thus, the attorney-client privilege must be “strictly confined within its narrowest possible limits.” Waste Management, Inc. v. International Surplus Lines Insurance Co., 144 Ill. 2d 178, 190 (1991). ¶ 18 Once it is established that information sought is protected by the attorney-client privilege, the party seeking the information has the burden of showing that the information is not privileged because an exception to the privilege applies.

2023In support of the first assertion, 1 In the specific portion of Consolidation Coal the trial court cited, this court articulated what must be shown in the first instance to give rise to the attorney-client privilege and not what must be shown to apply any exception to the privilege, stating as follows: “[T]he burden of showing facts which give rise to the privilege rests on the one who claims the exemption. ([Citations.]) Moreover, the claimant must show certain threshold requirements in order to avail itself of the privilege, including a showing that the communication originated in a confiden

2023The Court ruled that none of the documents produced for in camera inspection are protected by the attorney-client privilege as articulated by (Consolidation Coal Co. v. Bucyrus-Erie Co., 89 Ill. 2d 103, 119 (1982))” 1, a case not argued or cited by either party in their dispute whether the will contest exception applied to this case.

2023Rule 201(b)(2) exempts “[a]ll matters that are privileged against disclosure on the trial,” such as matters subject to the attorney-client privilege, and, separately, “[m]aterial prepared by or for a party in preparation for trial” if that material contains or discloses “the theories, mental impressions, or litigation plans of the party’s attorney.” “The work product doctrine *** is designed to protect the right of an attorney to thoroughly prepare his [or her] case and to preclude a less diligent adversary attorney from taking undue advantage of the former’s efforts.” Fischel & Kahn, Ltd., 18

2020Furthermore, the attorney-client privilege recognizes “ ‘that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer being fully informed by the client.’ ” Fischel & Kahn, 189 Ill. 2d at 585 (quoting Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)). ¶ 20 But Illinois also has a general public policy of strongly encouraging disclosure of information, with a view to ascertaining the truth, which is essential to the proper disposition of a lawsuit.

2024Decker, 153 Ill. 2d at 313 . ¶ 24 The attorney-client privilege, like all testimonial privileges, inherently limits the search for truth by preventing “otherwise relevant and admissible evidence from being disclosed.” People v. Knuckles, 165 Ill. 2d 125, 135 (1995).

2024Decker, 153 Ill. 2d at 313, 321 ; MDA City Apartments, 2012 IL App (1st) 111047, ¶ 28 (once information determined to fall within scope of attorney-client privilege, burden on party seeking information to show exception applies). ¶ 26 Absent an exception, there is no dispute that MacDonald seeks protected communications. ¶ 27 Prima Facie Showing of Crime-Fraud Exception ¶ 28 The crime-fraud exception, a “major exception to the attorney-client privilege,” pertains when a client seeks the lawyer’s services “in furtherance of criminal or fraudulent activity.” Decker, 153 Ill. 2d at 313 ; Radojcic

2025Attorney-client privilege is “ ‘inconsistent with the search for truth’ ” because it “ ‘prevent[s] otherwise relevant and admissible evidence from being disclosed.’ ” People v. Radojcic, 2013 IL 114197, ¶ 41 (quoting People v. Knuckles, 165 Ill. 2d 125, 135 (1995)).

2024Decker, 153 Ill. 2d at 313 . ¶ 24 The attorney-client privilege, like all testimonial privileges, inherently limits the search for truth by preventing “otherwise relevant and admissible evidence from being disclosed.” People v. Knuckles, 165 Ill. 2d 125, 135 (1995).

2021We agree with the analysis in the majority approach. ¶ 83 It is true that the attorney-client privilege is available to both individuals and corporations (Upjohn Co. v. United States, 449 U.S. 383 (1981)) and that the privilege survives an individual’s death (Swidler & Berlin v. United States, 524 U.S. 399, 407 (1998)).

2020Furthermore, the attorney-client privilege recognizes “ ‘that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer being fully informed by the client.’ ” Fischel & Kahn, 189 Ill. 2d at 585 (quoting Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)). ¶ 20 But Illinois also has a general public policy of strongly encouraging disclosure of information, with a view to ascertaining the truth, which is essential to the proper disposition of a lawsuit.

2013Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). ¶ 40 This court has recognized the following essential elements for the creation and application of the attorney-client privilege: -8- “ ‘(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.’ ” People v. Adam, 51 Ill. 2d 46, 48 (1972) (quoting 8 John H.

2013Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). ¶ 40 This court has recognized the following essential elements for the creation and application of the attorney-client privilege: “ ‘(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.’ ” People v. Adam, 51 Ill. 2d 46, 48 (1972) (quoting 8 John H.

2025A similar - 30 - example based on a determination of whether a client waived the attorney client privilege by volunteering information in a deposition can be found in Center Partners, Ltd. v. Growth Head GP, LLC, 2012 IL 113107, ¶ 20 .

2024The attorney-client privilege must “be strictly confined within its narrowest limits and limited solely to those communications which the claimant either expressly made confidential or which he could reasonably believe under the circumstances would be understood by the attorney as such.” Center Partners, Ltd., 2012 IL 113107, ¶ 32 .

2006“The work product doctrine provides a broader protection than the attorney-client privilege and is designed to protect the right of an attorney to thoroughly prepare his case and to preclude a less diligent adversary attorney from taking undue advantage of the former’s efforts.” Fischel & Kahn, Ltd. v. Van Straaten Gallery, Inc., 189 Ill. 2d 579, 591 (2000), citing Hickman v. Taylor, 329 U.S. 495, 510-11 , 91 L.

2006“The work product doctrine provides a broader protection than the attorney-client privilege and is designed to protect the right of an attorney to thoroughly prepare his case and to preclude a less diligent adversary attorney from taking undue advantage of the former’s efforts.” Fischel & Kahn, Ltd. v. Van Straaten Gallery, Inc., 189 Ill. 2d 579, 591 (2000), citing Hickman v. Taylor, 329 U.S. 495, 510-11 , 91 L.

2018Specifically, 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, 244 Ill.Dec. 941 , 727 N.E.2d 240 (2000), and Lama v. Preskill , 353 Ill.App.3d 300 , 305, 288 Ill.Dec. 755 , 818 N.E.2d 443 (2004) ); see also Waste Management, Inc. , 144 Ill.2d at 19

2018Specifically, 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, 244 Ill.Dec. 941 , 727 N.E.2d 240 (2000), and Lama v. Preskill , 353 Ill.App.3d 300 , 305, 288 Ill.Dec. 755 , 818 N.E.2d 443 (2004) ); see also Waste Management, Inc. , 144 Ill.2d at 19

2026As an exception to disclosure, the attorney-client privilege serves a valuable role in our legal system by “encourag[ing] and promot[ing] full and frank consultation between a client and legal advisor by removing the fear of compelled disclosure of information.” (Internal quotation marks omitted.) Waste Management, 144 Ill. 2d at 190 . ¶ 15 “The attorney-client privilege presumes that a client wishes his communications with his attorney to remain secret until proved otherwise.” Hitt v. Stephens, 285 Ill.

2026App. 3d 687, 693-94 (1984); DeHart, 2013 IL 114137, ¶ 69 ); see also DeHart, 2013 IL 114137, ¶ 73 (finding “this is indisputably a will contest,” and so “plaintiff will be able to make out a prima facie case on remand that the attorney-client privilege does not apply because it is subject to the will-contest exception”); Hitt, 285 Ill.

2013The Illinois Supreme Court, in defining the attorney-client privilege, has stated that: “(1) where legal advice of any kind is sought, (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence, (5) by the client, (6) are permanently protected, (7) from disclosure by himself or the legal advisor, (8) except the protection be waived.” Illinois Education Ass’n v. Illinois State Board of Education, 204 Ill. 2d 456, 467 (2003) (citing Fischel & Kahn, Ltd. v. Van Straaten Gallery, Inc., 189 Ill. 2d 579, 584 (2000), In re Hi

2008See, e.g., In re Himmel, 125 Ill. 2d 531, 541 (1988) (the attorney-client privilege exists, where, inter alia, legal advice of any kind is sought from a professional legal adviser in his capacity as such, and the communication at issue relates to that purpose).

2018Thus, in the absence of a sufficient record, we must presume that the court properly denied the motion in limine . ¶ 49 Second, we note that, although defendants present authority that, in Illinois, the attorney-client privilege can be waived as to "a communication put 'at issue' by a party who is a holder of the privilege" ( Shapo v. Tires 'N Tracks, Inc. , 336 Ill.

2013The attorney-client privilege may be waived “as to a communication put ‘at issue’ by a party who is a holder of the privilege.” Shapo v. Tires ’N Tracks, Inc., 336 Ill.

2020See Illinois Education Ass’n v. Illinois State Board of Education, 204 Ill. 2d 456, 467 (2003) (observing that for communications to be protected by the attorney-client privilege, the communication must be “made in confidence” by the client).

2020See Illinois Education, 204 Ill. 2d at 467 (observing that for communications to be protected by the attorney-client privilege, the communication must be “made in confidence” by the client). ¶ 82 The fourth e-mail was sent by Sabol on August 3, 2016, and summarized a meeting she had with Ostrowski earlier in the day.

2026App. 3d 687, 693-94 (1984); DeHart, 2013 IL 114137, ¶ 69 ); see also DeHart, 2013 IL 114137, ¶ 73 (finding “this is indisputably a will contest,” and so “plaintiff will be able to make out a prima facie case on remand that the attorney-client privilege does not apply because it is subject to the will-contest exception”); Hitt, 285 Ill.

2026App. 3d 687, 693-94 (1984); DeHart, 2013 IL 114137, ¶ 69 ); see also DeHart, 2013 IL 114137, ¶ 73 (finding “this is indisputably a will contest,” and so “plaintiff will be able to make out a prima facie case on remand that the attorney-client privilege does not apply because it is subject to the will-contest exception”); Hitt, 285 Ill.

2024The attorney-client privilege “has been described as being essential ‘to the proper functioning of our adversary system of justice.’ ” In re Marriage of Decker, 153 Ill. 2d 298, 312-13 (1992) (quoting United States v. Zolin, 491 U.S. 554, 562 (1989)).

2018Imwinkelried, 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 , 161 Ill.Dec. 774 , 579 N.E.2d 322 (quoting Consolidation Coal Co. v. Bucyrus-Erie Co. , 89 Ill.2d 103 , 117-18, 59 Ill.Dec. 666 , 432 N.E.2d 250 (1982) ). ¶ 23 While the attorney-client privilege serves a purpose that our supreme court has characterized as " 'essential "t

2018Simply put, if Illinois already recognizes a broad umbrella of privilege between parties while they share a - 13 - common interest in the outcome of a lawsuit, there is no reason not to enforce that privilege as against third parties just as broadly. ¶ 65 As we previously noted, we also find the common-interest exception to the waiver rule to be a logical extension of our supreme court decisions extending the attorney-client privilege to include client communications with nontestifying mental-health experts (Knuckles, 165 Ill. 2d at 135 ) and investigators (Knippenberg, 66 Ill. 2d at 284 ).

2017Simply put, if Illinois already recognizes a broad umbrella of privilege between parties while they *1159 share a common interest in the outcome of a lawsuit, there is no reason not to enforce that privilege as against third parties just as broadly. ¶ 65 As we previously noted, we also find the common-interest exception to the waiver rule to be a logical extension of our supreme court decisions extending the attorney-client privilege to include client communications with nontestifying mental-health experts ( Knuckles , 165 Ill. 2d at 135 , 209 Ill.Dec. 1 , 650 N.E.2d 974 ) and investigators (

1995(People v. Williams (1983), 97 Ill. 2d 252 , 454 N.E.2d 220 .) Illinois courts have held that the attorney-client privilege does not extend to the identity of the client unless the extension of the privilege is shown to be in the public interest or if it appears that the client will be prejudiced in "some substantial way” by the disclosure.

1995(People v. Williams (1983), 97 Ill. 2d 252 , 454 N.E.2d 220 .) Illinois courts have held that the attorney-client privilege does not extend to the identity of the client unless the extension of the privilege is shown to be in the public interest or if it appears that the client will be prejudiced in "some substantial way” by the disclosure.

2025“Where a defendant has asserted ineffective assistance of counsel and thereby put in issue the substance of communications between herself and her attorney, the defendant has waived the attorney-client privilege, and it is not error for the trial court to allow counsel to testify as to conversations with the defendant.” People v. O’Banner, 215 Ill.

2006However, under these circumstances, the defendant has waived his right to the attorney-client privilege, and either party to the proceedings can call defendant's trial counsel to testify regarding what he did and why he did it at defendant's trial. *571 See People v. O'Banner, 215 Ill.App.3d 778, 793 , 159 Ill.Dec. 201 , 575 N.E.2d 1261, 1270 (1991).

2023Rule 201(b)(2) exempts “[a]ll matters that are privileged against disclosure on the trial,” such as matters subject to the attorney-client privilege, and, separately, “[m]aterial prepared by or for a party in preparation for trial” if that material contains or discloses “the theories, mental impressions, or litigation plans of the party’s attorney.” “The work product doctrine *** is designed to protect the right of an attorney to thoroughly prepare his [or her] case and to preclude a less diligent adversary attorney from taking undue advantage of the former’s efforts.” Fischel & Kahn, Ltd., 18

1985(Monier v. Chamberlain (1966), 35 Ill. 2d 351 , 221 N.E.2d 410 .) The courts, therefore, narrowly construe the attorney-client privilege in order to avoid trammeling upon the broad discovery policy.

2025In People v. Radojcic, 2013 IL 114197, ¶ 1 , documentary evidence in the form of grand jury transcripts was considered to determine whether the crime-fraud exception to the attorney-client privilege applied.

2025Attorney-client privilege is “ ‘inconsistent with the search for truth’ ” because it “ ‘prevent[s] otherwise relevant and admissible evidence from being disclosed.’ ” People v. Radojcic, 2013 IL 114197, ¶ 41 (quoting People v. Knuckles, 165 Ill. 2d 125, 135 (1995)).

2023Center Partners, Ltd. v. Growth Head GP, LLC, 2012 IL 113107, ¶ 65 (citing Norskog v. Pfiel, 197 Ill. 2d 60, 71 (2001)). ¶ 27 “The attorney-client privilege, which protects both the client’s communications to the attorney and the attorney’s advice to the client, is one of the oldest privileges for confidential communications in common law.” (Emphasis added.) John Doe Corp. 1, 2021 IL App (2d) 200513, ¶ 71 (citing People v. Radojcic, 2013 IL 114197, ¶¶ 39-40 ).

2023Center Partners, Ltd. v. Growth Head GP, LLC, 2012 IL 113107, ¶ 65 (citing Norskog v. Pfiel, 197 Ill. 2d 60, 71 (2001)). ¶ 27 “The attorney-client privilege, which protects both the client’s communications to the attorney and the attorney’s advice to the client, is one of the oldest privileges for confidential communications in common law.” (Emphasis added.) John Doe Corp. 1, 2021 IL App (2d) 200513, ¶ 71 (citing People v. Radojcic, 2013 IL 114197, ¶¶ 39-40 ).

2024Under de novo review, we “perform the same analysis that a trial court would perform” (Adler v. Greenfield, 2013 IL App (1st) 121066, ¶ 40 ) and “may affirm on any basis in the record regardless of whether the trial court relied on that basis or its reasoning was correct.” Westfield Insurance Co. v. West Van Buren, LLC, 2016 IL App (1st) 140862 , ¶ 11. ¶ 21 As previously discussed, the circuit court ordered defendant to produce certain documents over its contention that they were protected by the attorney-client privilege.

2023In Adler v. Greenfield, 2013 IL App (1st) 121066, ¶ 61 , this court held that the exception to the privilege for a will contest does not apply where the action was not a will contest but was “a separate action in the law division and not in the probate division, for legal malpractice.” ¶ 39 The will contest exception to the attorney-client privilege does not apply in actions that do not directly contest a testamentary instrument where the separate action involves what could arguably be categorized as testamentary issues.

2012Our appellate court has refined and elaborated on subject matter waiver: “Although voluntary disclosure of confidential information does not effectively waive an attorney-client privilege as to all other non-disclosed communications that may have taken place [citation], where a client reveals portions of her conversation with her attorney, those revelations amount to a waiver of the attorney-client privilege as to the remainder of the conversation or communication about the same subject matter.” In re Grand Jury January 246, 272 Ill.

1998"The definition and application of the attorney-client privilege have been explained as follows: (1) where legal advice of any kind is sought; (2) from a professional legal adviser in his capacity as such; (3) the communications relating to that purpose; (4) made in confidence; (5) by the client; (6) are at his instance permanently protected; (7) from disclosure by himself or by the legal adviser; (8) except the protection may be waived." In re Grand Jury January 246 , 272 Ill.

2018An adjudication of a claim of ineffective assistance of counsel is better made in proceedings on a petition for post-conviction relief, when a complete record can be made and the attorney-client privilege no longer applies.” Kunze, 193 Ill.

2017An adjudication of a claim of ineffective assistance of counsel is better made in proceedings on a petition for post-conviction relief, when a complete record can be made and the attorney-client privilege no longer applies." Kunze , 193 Ill.App.3d at 725 -26 , 140 Ill.Dec. 648 , 550 N.E.2d 284 . ¶ 39 We note, however, that the appellate court in Kunze did not cite any authority to support its holding that ineffective assistance of counsel claims are better made in postconviction proceedings.