illinois; how can a client waive attorney client privilege

When the disclosure is made in an Illinois proceeding or to an Illinois office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in any proceeding only if: (1) the waiver is intentional; (2) the disclosed and undisclosed communications or information concern the same subject matter; and (3) they ought in fairness to be considered together.

Full Answer

How do I waive attorney-client privilege?

To waive attorney client privilege, a court has to first determine whether the privilege can be waived and who has the authority to waive it. Waiving attorney-client privilege can have a significant impact on the outcome of a legal case because it results in the disclosure of attorney-client communications.

What privileged status does a lawyer’s communication with a client have?

Lawyers need to consider and address many issues before the representation begins, including the privileged status of communications with the clients in the engagement. The attorney-client privilege exists between a lawyer and each client in a joint engagement.

What is the attorney-client privilege in a joint engagement?

The attorney-client privilege exists between a lawyer and each client in a joint engagement. The privilege applies to communications between the lawyer and each client regarding the engagement; it also applies to communications among joint clients and their common attorneys.

Does the attorney-client privilege apply to corporations?

In the groundbreaking Upjohn Co. v. United States case, the Supreme Court decided that the attorney-client privilege not only applies to individuals but corporations as well. Since the corporation itself, not the management, is the client, it is the holder of the attorney-client privilege.

Can a client waive privilege?

Privilege can be waived by conduct of the client. This can occur with conduct such as: where part but not all of the communication between a client and solicitor has been set out before the court.

How can privilege be waived?

Waiver by communicating with a third party – Having a third party present when the communication is taking place is a common way to waive attorney-client privilege. Waiver can also occur if privileged information is disclosed to a third party at a later time.

What are the exceptions to the attorney-client privilege?

Section 126 of the Act lays down two exceptions to attorney-client privilege, namely: communication made in the furtherance of any illegal purpose; and. any fact observed by an attorney in the course of his or her employment that shows a crime or fraud has been committed since the start of his or her employment.

What is a privilege and how can it be waived?

Generally speaking, any communications between a client and his or her lawyer are confidential and privileged. There are exceptions but this is the general rule, and through various means, the privilege can be “waived” , so that the other side can investigate the various documents or communications that were in issue.

Which of the following are examples of privilege waivers?

Common examples of privilege waivers:Forwarding a privileged email communication to a third party.Sharing (in writing or orally) the substance of the lawyer's advice.“My lawyer says we can't do that” can be a waiver.Including privileged materials in a data room.More items...•

What does it mean to waive an attorney?

In practice, after giving the Miranda warnings, law enforcement will often ask arrested individuals to waive their right to have an attorney present during questioning. They might even ask them to sign a document indicating they have been advised of their rights, understand them, and choose to waive them.

Can you break attorney-client privilege?

The attorney-client privilege is important to any lawsuit. But in some cases, the attorney-client privilege can be destroyed, either by design or by accident. What is the attorney-client privilege? In general, it means confidential communication between a client and her lawyer cannot be used in court.

Under what circumstance may an attorney break attorney-client privilege quizlet?

Under what circumstance may an attorney break attorney-client privilege? The client discloses information about a crime that has not yet been committed.

What is the difference between attorney-client privilege and confidentiality?

The difference? Very simply put, attorney-client privilege stems from rules of EVIDENCE, whereas confidentiality stems from rules of ETHICS. But that's not all. Starting with confidentiality, every state has Rules of Professional Conduct that apply to lawyers who are licensed in that state.

Can you waive someone else's privilege?

Waiver occurs when the holder of the privilege acts in a way that is inconsistent with the communication remaining confidential. Waiver can be intentional, unintentional or implied.

Does forwarding an email waive privilege?

An e-mail from your attorney is privileged, but once you forward it to anyone not covered by the privilege, the e-mail is no longer a confidential communication. Inadvertent waiver is particularly a risk with e-mail software containing an auto-text feature that automatically completes e-mail addresses.

Where does attorney-client privilege come from?

The attorney-client privilege is the oldest privilege recognized by Anglo-American jurisprudence. In fact, the principles of the testimonial privilege may be traced all the way back to the Roman Republic, and its use was firmly established in English law as early as the reign of Elizabeth I in the 16th century.

What does waive confidentiality mean?

A waiver of confidentiality enables an agency to share the submitter's confidential business information with another reviewing agency, facilitating joint discussion and analysis.

What happens when attorney-client privilege is broken?

An attorney who fails to uphold the duty of confidentiality may be sued for damages. However, confidential information can be used against a client in legal proceedings, whereas privileged information – which by nature is also confidential – cannot, unless so ordered by a court of law.

Where does attorney-client privilege come from?

The attorney-client privilege is the oldest privilege recognized by Anglo-American jurisprudence. In fact, the principles of the testimonial privilege may be traced all the way back to the Roman Republic, and its use was firmly established in English law as early as the reign of Elizabeth I in the 16th century.

What is the difference between attorney-client privilege and confidentiality?

The difference? Very simply put, attorney-client privilege stems from rules of EVIDENCE, whereas confidentiality stems from rules of ETHICS. But that's not all. Starting with confidentiality, every state has Rules of Professional Conduct that apply to lawyers who are licensed in that state.

What is Attorney Client Privilege?

In litigation, prior to trial the parties will engage in written discovery and depositions in order to gather information from the other parties to use as evidence at trial . Certain types of information are protected by privileges, which means that the information is not required to be disclosed to other parties. One of these privileges is the attorney-client privilege.

Does an attorney-client relationship need a retention agreement?

In order for a communication to meet this definition, the following must be true: An attorney-client relationship must exist: this does not necessarily require a written retention agreement, but the client must have communicated confidential information to an attorney while seeking legal advice.

Is work product protected by attorney-client privilege?

Some materials prepared by attorneys in preparation for trial are protected attorney “work product” covered by attorney-client privilege. In order to meet the definition of “work product,” the material must meet the following requirements:

What is attorney client privilege?

Piercing the attorney-client privilege may be one of opposing counsel’s top priorities irrespective of the strength of their case. The privilege protects confidential communications between the client and the lawyer made for the purpose of obtaining or providing legal assistance, to “encourage full and frank communication . . . and thereby promote broader public interests in the observance of law and administration of justice.” United States v. Zolin, 491 U.S. at 562, 109 S.Ct. 2619 (quoting Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981) ). But the privilege may not apply, it may be waived, or there may be exceptions to it. Counsel’s position on issues concerning potentially privileged documents impacts his or her credibility with the court, so it is advisable to be fully familiar with the scope of the privilege from the first time the issue arises in a matter, and not when it is too late.

Do officers, directors, and employees need in-house counsel?

Officers, directors, and employees must rely on in-house counsel to understand the difference. The predominant purpose of the communications should seek legal services for the privilege to apply. Copying in-house counsel on communications does not make them privileged.

Should outside counsel retain consultants?

Clearly identify when seeking or providing legal advice. Only outside counsel should retain and communicate with consultants during litigation. Retention by in-house counsel is preferable to retention by corporate management. Explain privilege limits and waiver to the client at the beginning and throughout a matter.

What happens when an attorney discloses a client's privileged communication?

It has long been established that the voluntary disclosure by a client of an attorney-client privileged communication to a third party (i.e., outside the attorney-client relationship) destroys the privilege with respect to that particular communication because it is no longer confidential.

What is the purpose of the subject matter waiver doctrine?

The court first reasoned that "limiting application of subject matter waiver to disclosures made in litigation better serves the purpose of the doctrine," which is to "prevent a party from strategically and selectively disclosing partial attorney-client communications with his attorney to use as a sword, and then invoking the privilege as a shield to other communications so as to gain a tactical advantage in litigation ." 11 That purpose is "not served, however, when the doctrine is expanded to cover disclosures made before litigation is initiated or, in many cases, even contemplated." 12

What was the issue in the case of the privileged documents?

At issue in the case was whether, by discussing legal issues with each other in business negotiations, a number of corporate defendants in later litigation had waived the attorney-client privilege over private communications with their attorneys concerning the negotiated business transaction. Such a finding would have required the defendants to produce in the litigation hundreds of privileged documents and to testify about numerous privileged conversations.

What is subject matter waiver?

Quoting Wigmore, the supreme court stated the general rule of subject matter waiver as follows: " [t]he client's offer of his own or the attorney's testimony as to a specific communication to the attorney is a waiver as to all other communications to the attorney on the same matter." 4 The supreme court also recited the more recent formulation of the doctrine by the appellate court: "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." 5

Can a waiver of attorney-client privilege be used in litigation?

Because of the severe consequences of such a waiver, litigants and counsel should proceed with extreme caution before choosing to inject otherwise privileged attorney-client communications or otherwise protected attorney work product into litigation. Doing so can open the proverbial Pandora's box, and the scope of the resulting waiver may be much broader than anticipated.

When did the Illinois Supreme Court adopt the new Rule of Evidence?

The new rule took effect on January 1, 2013. In language that mirrors Federal Rule of Evidence 502, the new rule states, in relevant part, as follows:

Does Illinois have a subject matter waiver?

Courts finding such waivers have held that they extend only so far as the "subject matter" of the disclosed communication. Until recently, Illinois law provided little guidance about what circumstances trigger the subject matter waiver doctrine. While courts in other jurisdictions had weighed in, few reported Illinois decisions discussed the doctrine.

What is IRE 502?

IRE 502 and Rule 201(p) have the potential to greatly simplify and clarify Illinois law pertaining to the waiver of the attorney-client privilege and work product protection. IRE 502(f), however, may have created a conflict in Illinois by adopting the federal definition of work product protection. This conflict should be addressed by the Illinois Supreme Court to provide litigating parties some additional clarity in this area. Other than this conflict, the rules provide clear guidelines for Illinois courts and should be especially helpful to litigants who engage in large-volume discovery, including the inadvertent disclosure of electronically stored information.120

Does IRE 502 violate separation of powers?

Finally, it is important for us to comment that IRE 502 does not infringe on separation of powers principles with respect to waiver in Illinois administrative proceedings.115 During committee hearings, Professor Jeffrey A. Parness argued that IRE 502 would unconstitutionally prescribe evidentiary rules for administrative proceedings.116 We do not agree. IRE 101 limits the applicability of the Illinois Rules of Evidence to “proceedings in the courts of Illinois.”117 In Illinois, the Illinois Supreme Court has the authority to enact rules of evidence that govern civil and criminal judicial proceedings. On the other hand, it is the legislature that has the authority to enact rules of procedure and evidence for administrative hearings.118 Since the legislature has chosen to apply evidence rules that govern civil judicial proceedings to administrative proceedings,119 that

What is attorney client privilege?

The attorney-client privilege exists between a lawyer and each client in a joint engagement. The privilege applies to communications between the lawyer and each client regarding the engagement; it also applies to communications among joint clients and their common attorneys. Persons outside the joint representation may obtain privileged ...

What should a lawyer tell a client?

First, a lawyer being engaged by multiple clients should tell each client that information learned by the lawyer from any source will be disclosed to all clients in the representation equally. Second, the joint attorney should also state that information received from one client will be disclosed to the other clients in the engagement .

What is the second exception to the adverse litigation exception?

The second exception applies to litigation between clients in the joint representation. Under this “adverse-litigation exception,” all communications made in the course of the joint representation are discoverable when former joint clients sue one another. This exception also applies to litigation between one of the joint clients and the attorney who represented all the joint clients. Hence, a joint attorney cannot withhold from one joint client privileged communications from the joint representation, even if another joint client refuses to consent to the disclosure. Allowing a joint client to prevent the joint attorney from disclosing communications from the joint representation risks collusion between one client and the joint attorney. For example, if the joint attorney breached a duty to one joint client but did not harm another joint client, and the client that had been harmed sued the attorney, it would be unjust to allow the unharmed client to use the privilege to prevent the harmed client from obtaining communications made in the course of the representation to prove its case. Similarly, the “adverse-litigation exception” applies when joint clients together sue their joint attorney. In that instance, the clients cannot invoke the privilege to prevent the attorney from using communications made in the representation in defense of the claims.

When should a lawyer withdraw from a representation?

Fourth, the lawyer should reserve the right to withdraw from the representation if the lawyer concludes that a conflict of interest exists between or among the clients and/or the lawyer, and watch carefully throughout the engagement for conflicts.

Can a joint client waive a privileged relationship with a joint attorney?

The first exception states that one joint client may waive the privilege as to its own communications with a joint attorney, provided those communications concern only the waiving client. This is only the application of the general principle that a client may waive the privileged status of its communications with its attorney.

Can a joint attorney withhold from one client privileged communications from the joint representation?

Hence, a joint attorney cannot withhold from one joint client privileged communications from the joint representation, even if another joint client refuses to consent to the disclosure. Allowing a joint client to prevent the joint attorney from disclosing communications from the joint representation risks collusion between one client and ...

Can joint clients expect to keep information from other joint clients?

That assumption supports a belief that joint clients cannot reasonably expect that the joint attorney will keep information from other joint clients. All of this seems to presume that joint clients share a sophisticated understanding of the application of the privilege, a presumption that may not be consistent with fact.

Why is it so difficult to conduct a privileged investigation in Illinois?

Because of the more limited scope of both the attorney-client and work product privileges under Illinois law , it is more difficult to conduct a privileged investigation in Illinois than in most states and under the federal rules:

Is an investigation protected under the work product or attorney-client privileges?

Investigations that are principally motivated by an ordinary business purpose as opposed to those conducted in anticipation of litigation or to collect information for the purpose of rendering legal advice to the corporate client are not protected under either the work product or attorney-client privileges as interpreted under federal law, and the law of most states.

Is information shared with a testifying expert privileged?

Information shared with a testifying expert is generally not privileged. Accordingly, parties and outside counsel must be cautious in sharing internal corporate memoranda, analyses prepared by counsel, and similar work product material (e.g., draft briefs) with a testifying expert.

What Is Attorney-Client Privilege?

• Attorney-client privilege refers to the legal privilege that maintains the secrecy of communications between a lawyer and his or her client. Attorney-client privilege is asserted when there is a legal demand for such communications, such as a demand for the attorney to testify under oath or a discovery request. In general, it covers oral and writte...

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Privileged Communications Between Attorney and Client

• ‍The attorney-client privilege extends to confidential communications between an attorney and their client. In order for a communication to meet this definition, the following must be true: 1. An attorney-client relationship must exist: this does not necessarily require a written retention agreement, but the client must have communicated confidenti...

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Privileged Attorney Work Product