At Issue Waiver of the Attorney-Client Privilege in Illinois: An Exception in Need of a Standard

Northern Illinois University Law Review Northern Illinois University Law Review

Volume 30 Issue 3 Article 2

7-1-2010

At Issue Waiver of the Attorney-Client Privilege in Illinois: An At Issue Waiver of the Attorney-Client Privilege in Illinois: An

Exception in Need of a Standard Exception in Need of a Standard

Kevin Bennardo

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Suggested Citation Suggested Citation

Kevin Bennardo, At Issue Waiver of the Attorney-Client Privilege in Illinois: An Exception in Need of a

Standard, 30 N. Ill. U. L. Rev. 553 (2010).

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At

Issue

Waiver

of

the

Attorney-Client

Privilege

in Illinois:

An Exception

in

Need

of

a

Standard

KEVIN

BENNARDO*

I.

APPLICATION

OF

AT

ISSUE

WAIVER

OF

THE

ATTORNEY-CLIENT

P

R

IV

ILEG

E

.........................................................................................

554

A.

A

SHORT

HISTORY

.....................................................................

554

B.

THE HEARN

TEST

........................................................................

555

C.

THE

ANTICIPATORY

WAIVER

TEST

.............................................

555

II.

AT

ISSUE

W

AIVER

IN

ILLINOIS ..........................................................

556

A.

CASE

LAW

IN

SEARCH OF

A

RUDDER

.........................................

556

B.

A

TEST FOR

ALL

SEASONS

..........................................................

560

11

.

C

ON CLU SION

.....................................................................................

561

The

attorney-client

privilege,

"a

hallmark

of

Anglo-American

juri-

sprudence

for

almost

400

years,"'

is

one

of

the

oldest

and

most

revered

privileges

in

American

law,

but

it

is

not without

its

exceptions.

One

such

exception

is

"at

issue"

waiver

of

the

privilege.

2

In

Illinois

the attorney-client

privilege

is

codified

by

Supreme

Court

Rule

201(b)(2):

"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

dis-

covery

procedure."

3

The

purpose

of

the

privilege

is

"to

encourage

and

pro-

mote

full

and frank

consultation

between

a

client

and

legal

advisor

by

re-

moving the fear

of

compelled

disclosure

of

information.

'

A

It is

the

attorney-

client privilege,

not

the

duty to

disclose,

that

is

the

exception,

and

therefore

the

privilege

is

to

be

strictly

confined

to

its

narrowest

possible

limits.

5

As

*

Court

counsel

to

the

Supreme

Court

of

the

Republic

of

Palau;

J.D.,

2007,

The

Ohio

State

University Moritz

College

of

Law.

1.

See

Mitchell

v.

Superior Court

of

Fresno

County,

691

P.2d

642, 645

(Cal.

1984).

2.

At

issue

waiver

is

often

referred

to

in

other

jurisdictions

as "implied

waiver"

or

even

occasionally

as "in

issue waiver,"

see

Rockwell

Int'l

Corp.

v.

Superior

Court,

32

Cal.

Rptr.

2d

153,

161

n.5 (Cal.

Ct.

App.

1994),

but

Illinois

courts generally

refer

to

the doctrine

as

"at

issue

waiver,"

see, e.g.,

Waste Mgmt.,

Inc.

v.

Int'l

Surplus

Lines

Ins.

Co.,

579

N.E.2d

322,

331

(Il1.

1991).

3.

ILL.

SUP.

CT.

R.

201(b)(2).

4.

Consolidation

Coal

Co.

v. Bucyrus-Erie

Co.,

432

N.E.2d

250,

256

(I11.

1982).

5.

See

id.

at

257.

NORTHERN

ILLINOIS

UNIVERSITY

LAW

REVIEW

with

any

privilege,

the

attorney-client

privilege

hampers

the

truth-seeking

function

of

law

and

therefore

is

not

to

be applied

nonchalantly.

I.

APPLICATION

OF

AT

ISSUE

WAIVER

OF

THE

ATTORNEY-CLIENT

PRIVILEGE

A. A

SHORT

HISTORY

Although

it can

trace

its

origins

in

American

law

to

the

Gilded

Age,

6

at issue

waiver

of

the

attorney-client privilege

is

a

still-developing

facet

of

evidentiary

law

to

which

courts

around

the

country

have

taken

differing

approaches. Generally,

at

issue

waiver

of

the

attorney

client

privilege

oc-

curs

when

a

party

pleads

a

claim

or

defense

that

places at

issue

the

subject

matter

of

privileged

material

over

which

she has

control.

The

split

in

authority

occurs

over

the

meaning

of

placing

a

communi-

cation

at

issue.

Four

lines

of

decisions

have

formed:

(1)

the

automatic

waiver

rule,

(2)

the

balancing

test,

(3)

the

Hearn

test,

and

(4)

the

anticipato-

ry

waiver

test.

7

Neither

of

the

first

two

tests

is

presently

regarded

as

viable.

8

Under

the

automatic

waiver

approach,

a

litigant

who

asserts

a

claim,

counterclaim,

or

affirmative

defense

injecting

an

issue

into the

forefront

of

the

litigation,

automatically

waives

all

corresponding

privileges.

9

Although

consistent,

automatic

waiver results

in

unwarranted

waivers.

The

second

approach,

the

balancing

test,

weighs the

need

for

the discovery

against the

need

to

protect

the

secrecy

of

the

information.'

0

While sensitive

to

subtleties

in

particular

cases,

application

of

the

balancing test

leads

to

inconsistent

results. Because

of

their

respective

shortcomings,

neither

of

these

two

approaches

is

fa-

vored."'

6.

See

Hunt

v.

Blackburn,

128

U.S.

464,

470-71

(1888).

7.

See

T.

Maxfield

Bahner

&

Michael

L.

Gallion,

Waiver

of

Attorney-client

Privi-

lege

via

Issue

Injection:

A

Call

for

Uniformity,

65

DEF. COUNS.

J. 199,

201-05

(1998)

(advo-

cating

for

the

adoption

of

the

Hearn

test).

8.

See

id.

at

201-02;

see

also

FDIC

v.

Wise,

139

F.R.D.

168,

171

(D. Colo.

1991)

(stating

that

the

automatic

waiver

approach

is

"too rigid" while

the

balancing

test

suffers

from

"lack

of

concreteness").

9.

See

Bahner

&

Gallion, supra

note

7,

at

201;

see

also

Indep.

Prods.

Corp.

v.

Loew's,

Inc.,

22

F.R.D.

266,

277

(S.D.N.Y.

1958)

("Plaintiffs

in

this

civil

action have

in-

itiated the action

and

forced

defendants

into

court.

If

plaintiffs had

not brought

the

action,

they

would

not

have

been

called

on

to

testify.

Even

now,

plaintiffs

need

not

testify

if

they

discontinue

the action.

They

have

freedom and reasonable

choice

of

action.").

10.

See

Bahner

&

Gallion,

supra

note

7,

at

202;

see

also

Zenith Radio Corp.

v.

United

States,

764

F.2d

1577,

1579-81

(Fed.

Cir.

1985)

(describing and

applying-without

adopting-the

balancing

test).

11.

See

Bahner

&

Gallion,

supra note

7,

at

201-02.

[Vol.

30

A

TISSUE

WAIVER

OF

THE

A

TTORNEY-CLIENT

PRIVILEGE IN

ILLINOIS

B.

THE

HEARN

TEST

The

test

for

at

issue

waiver

that

took hold

in

the

mid-1970s

is

the

Hearn

test,

which

takes

it

name

from

the

decision

in

which

its

genesis

may

be found,

Hearn

v.

Rhay.1

2

The

Hearn

test

has been distilled

into

a

three-

prong

inquiry:

If

(i)

assertion

of

the privilege

is

the

result

of

some

affirma-

tive

act, such

as

filing suit, by

the

asserting

party,

(ii)

through

the

affirmative action,

the

asserting party has

placed

the

protected

information

at

issue

by

making

it

rele-

vant

to

the case,

and

(iii)

application

of

the

privilege

would

deny the

opposing

party

access to

information

vital

to

its

defense, the

court should

find

that the

asserting

party

has

impliedly waived

the

privilege

through

its

own

affirmative

conduct.

13

Under

the

third prong,

courts

deem

information

to

be

"vital"

only

if

it

is

not

available

from

any

other

source.

1

4

Although widely

adopted

and

followed

because

it

retains most

of

the

flexibility

of

the

balancing test

while

(at

least

superficially)

injecting

pre-

dictability

into

the

process

with

its

three-pronged

approach,

uneven

applica-

tion

of

the

Hearn

test

over

the

past

thirty

years has

given rise

to

increasing

criticism

of

the

test

from

the bench

and

academics alike. Because

every

affirmative

pleading will

make

new

material

relevant

to the

action,

the

first

two

factors

of

the

Hearn

test

have

been derided

as

mere

window

dressing-

factors

that

do

not

actually

limit the finding

of

waiver.

15

And

the

third

fac-

tor

of

the

Hearn

test

has

been

criticized

because

it

balances

the

attorney-

client

privilege-an

absolute

privilege that

has

been

recognized

after

weighing

the

system-wide

costs and

benefits

of

the

privilege

against

the

opposing

party's

need

for

the

information

in

an

individual

case.

1

6

C.

THE

ANTICIPATORY

WAIVER

TEST

Under

the

fourth

approach,

the

anticipatory waiver

test,

a

party

waives

the

attorney-client

privilege

when

she

places

the

advice

of

counsel

at

issue

by

(i)

asserting

a

claim or defense and

(ii)

then

seeking

to prove

that

claim

12.

68

F.R.D.

574

(E.D.

Wash.

1975).

13.

FDIC

v.

Wise,

139

F.R.D.

168,

171

(D. Colo.

1991).

14.

See,

e.g.,

Frontier

Ref.

Inc.

v.

Gorman-Rupp

Co.,

136

F.3d

695,

701

(10th

Cir.

1998).

15.

See

Developments

in

the

Law-Privileged

Communications,

98

HARV. L.

REV.

1629,

1640

(1985).

16.

See

id.

2010]

NORTHERN

ILLINOIS

UNIVERSITY

LAW

REVIEW

or

defense

by

disclosing

or

describing

an

attorney-client

communication.

17

This

test

abides

by

the

maxim

that

a

privilege

is

to

be

used

as a

"shield,"

not

as

a

"sword."

1

8

1I.

AT

ISSUE

WAIVER

IN

ILLINOIS

A.

CASE

LAW

IN

SEARCH

OF

A RUDDER

Illinois

cases

dealing

with

at

issue

waiver

fail

to

address

which ap-

proach

is

to

be

used

to

determine

when

a

communication

is

sufficiently

placed

at

issue

so

as

to

waive

the

attorney-client

privilege.

As

illustrated

below,

Illinois

case

law

on at

issue

waiver

lacks

defmitive guidance.

The

Illinois

Supreme

Court

wrote

on

at

issue

waiver

in

Waste

Man-

agement,

Inc.

v.

International

Surplus

Lines

Insurance

Co.

19

The

supreme

court

stated

that

it "agree[d]

that

defense

counsel's

litigation files

in

the

underlying

cases

are

relevant and

at

issue

in

the

present

declaratory

judg-

ment

action.,

20

However,

because

the

court

found

that

the

attorney-client

privilege

did not apply

in

that

case

for

other

reasons,

its

comments

on

at

issue

waiver

are

dicta.

Although

the

supreme

court

did

not

discuss

the

tests,

its

reference

to

relevance

suggests

a

Hearn-like

approach

to

at

issue

waiver;

however,

as

a

statement

of

dicta

that

fails

to

reference

Hearn

or

any

of

the

tests,

the

comment

does

not

provide

sturdy

footing

for

further

analysis.

1

The

Illinois

Supreme

Court

fielded the issue

again

in

Fischel

&

Kahn,

Ltd.

v.

Van

Straaten Gallery,

Inc.

22

The

defendant

had

counterclaimed

against

Fischel

&

Kahn

for

legal

malpractice

surrounding

the

defense

and

settlement

of

a

prior

litigation.

Fischel

&

Kahn

claimed

that

the

malpractice

counterclaim

waived

the

defendant's

attorney-client

privilege

with

respect

17.

See

Rhone-Poulenc

Rorer

Inc.

v.

Home Indem.

Co.,

32

F.3d

851,

863

(3d

Cir.

1994).

18.

See

United

States

v.

Rylander,

460 U.S.

752,

758

(1983)

(privilege

against

self-

incrimination);

MacGreal

v.

Taylor,

167

U.S.

688,

701

(1897)

(privilege

of

infancy).

19.

579

N.E.2d

322

(Ill.

1991).

20.

Id.

at

327.

21.

Illinois

federal

courts

have

not

come to

a

consensus regarding

at

issue

waiver

of

the

attorney

client privilege.

Compare,

e.g.,

Pyramid

Controls,

Inc.

v.

Siemens

Indus.

Auto-

mations,

Inc.,

176

F.R.D.

269,

272

(N.D.

Ill.

1997)

(referring

to

Hearn

as "the seminal case"

on

at issue

waiver),

with

Dexia

Credit

Local

v.

Rogan,

231

F.R.D.

268,

275-76 (N.D.

Ill.

2004)

(discrediting

Pyramid

Controls

and

applying

the

Rhone-Poulenc

anticipatory waiver

test

in

an

Illinois diversity

case),

and

Grochocinski

v.

Mayer Brown

Rowe

&

Maw

LLP,

251

F.R.D.

316,

324

(N.D.

111.

2008)

(following

Dexia

in

an

Illinois

diversity

case: "[I]t

is

not

sufficient

that

a

party

merely

deny

an

allegation,

or

that

the

documents

are

relevant

to

the

claim.").

See

also

Kordek

v.

United Agri

Prod., Inc.,

2007

WL

1118435,

*4-5

(N.D.

11.

Apr.

16,

2007)

(applying

the

reasoning

of

Pyramid

Controls

in

an

Illinois

diversity case

and

find-

ing

Dexia

and

similarly-decided

cases

to

be

unfaithful

to

Lama,

discussed

infra).

22.

727

N.E.2d

240

(Il.

2000).

[Vol.

30

A

TISSUE

WAIVER

OF

THE

A

7'ORNEY-CLIENTPRIVILEGE

IN

ILLINOIS

to

the

previous litigation,

including the

defendant's

subsequent

representa-

tion

by

another

law

firm,

Pope

&

John.

23

The

court

distinguished

the case

before

it

from

another

case-a

case

which

relied

on

Hearn-by

saying

that

the

material

sought

by Fischel

&

Kahn

was

not

vital

to

its

defense

of

the

malpractice action.

24

Because

the

privileged

material represented

only

the

most

convenient

means-not

the

only

means-to

determine

whether

and

to

what

extent

the

defendant's

loss

resulted

from

malpractice,

the

court

held

that

the

attorney-client

privilege

was

not waived

by

the

initiation

of

the

malpractice

suit.

2

5

The

Illinois Second

District

Appellate Court

found

implied

waiver

of

the

attorney-client

privilege

in

Lama

v.

Preskill.

26

The

circuit

court

below

had

imposed

a

contempt order against

the defendant

and

her

attorney

when

they refused

to

produce

documents

they claimed

were

protected

by the

at-

torney-client privilege.

27

The

plaintiff

sued

for medical

malpractice; the

defendant doctor

asserted

that

the

statute

of

limitations

had

run

because

the

plaintiff

had discovered

her injury

more

than

two years

prior.

The basis

for

the

defendant's

assertion was

a

visit

by

the

plaintiffs

husband

to

an

attorney directly after

the

surgery

at

issue,

which, according

to

the

defendant,

demonstrated

that

the

plaintiff

knew

of

her injury

imme-

diately

following the

surgery.

28

The

plaintiff

had

anticipated

that

the

statute

of

limitations would

be

raised

as a

defense (because

the

surgery

at

issue

had

occurred

more

than

two

years

prior

to the

filing

of

the

complaint)

and

there-

fore

included

in the

complaint

that

the statute

of

limitations

had been tolled

by

the

discovery

rule

because

she

did

not

discover

the injury

until

some

time

after

the

surgery

occurred.

29

The

defendant asserted

that

the

plaintiff

placed

the

privileged

commu-

nications

at

issue

by

pleading

the

tolling

of

the

statute

of

limitations

in

her

complaint.

30

The

plaintiff

argued that

she

had

not

placed

the

privileged

communications

at

issue

because

she

was not

relying on

the

communica-

tions

in

any

offensive way,

but

rather

it

was

the

defendant that

put

the

privi-

leged

communications

in

the

forefront

of

the

litigation

by

asserting

the

af-

firmative

defense

of

untimeliness.

3

'

23.

Id.

at

243.

24.

Id.

at

245.

25.

Id.

at

246

("Mere convenience, however,

should

not

justify

waiver

of

the

attor-

ney-client privilege.").

26. 818

N.E.2d

443

(I11.

App. Ct. 2004).

27.

See

id.

at

445.

28.

See

id.

at

446.

29.

See

id.

at

449.

30.

See

id.

at 448.

31.

See

Lama,

818

N.E.2d

at

448.

2010]

NORTHERN

ILLINOIS

UNIVERSITY

LA

W

REVIEW

Quoting

the

Pyramid

Controls

federal

court

opinion,

32

the Second

Dis-

trict

Appellate

Court

stated

that

at

issue

waiver

occurs

"where

a

party

vo-

luntarily

injects

either

a

factual

or

legal

issue

into

the

case,

the

truthful

reso-

lution

of

which

requires

an

examination

of

the

confidential

communica-

tions.

33

The

Lama

court

found

that

the

plaintiff

had

voluntarily

injected

into

the

case

the

factual

and

legal

issues

of

when she

learned

of

her

injury

by

raising

the

issue

of

whether

she

knew

or

should

have

known

of

her

in-

jury

prior

to

the

end

of

the

limitations

period

in

her

complaint.

34

Therefore,

the

court

held

that

the

plaintiff

had

waived

her attorney-client

privilege

regarding

communications

between

her

husband

(who

was

acting

as

her

agent)

and

the

consulted

attorney.

3

5

In

dissent,

Judge

Bowman

disagreed

with

the

majority's

analogizing

to

Pyramid

Controls

specifically

because

Pyramid

Controls

applied

the

Hearn

test.

36

Judge

Bowman

noted

the

strong

criticism

levied against

the

Hearn

test

by

commentators

and

courts,

especially

"for

focusing

on

the

opposing

party's

need

for

the

privileged

information

despite

the

Supreme

Court's

emphasis on the

role

of

certainty

in

encouraging

the

full

and

frank

commu-

nication

between

attorneys

and

their

clients."

37

Judge

Bowman

stated that

application

of

the

Hearn

test

would

lead courts

to

find

waiver

too

freely,

"in

virtually every

case

where

the

statute

of

limitations

is

pleaded

as

a

defense

and

the

client

relies

on

the

discovery

rule

to

overcome

the

limitations

pe-

riod,

the

opposing

party

may discover

confidential communications

be-

tween

the

client

and

the

attorney

merely

to

test

the

client's

credibility."

38

Judge

Bowman

recommended

that

Illinois should

follow

several states

in

finding

at

issue

waiver

only

"when

the

party

asserting

the

privilege

has

in-

jected

the

privileged

material

into

the

case,

such

that

the

information

is

ac-

tually required

for

resolution

of

the

issue,"

thereby calling

for "offensive

or

direct

use

of

privileged

materials

before

the

party

will

be

deemed

to

have

waived

its

attorney-client

privilege.,

39

Although

Judge

Bowman's

dissent

provides

a

cogent

and

coherent discussion

of

the

tests

and

a

clear recom-

mendation,

the majority

decision

fails

to address

the

same

(and

does

not

even

mention

Hearn)

and

is

therefore

of

limited utility

in

divining

the go-

verning

standard.

32.

See Pyramid Controls,

Inc.

v.

Siemens

Indus.

Automations,

Inc.,

176

F.R.D.

269,

272

(N.D.

I11.

1997).

33.

Lama,

818

N.E.2d

at

448

(quoting

Pyramid

Controls,

176

F.R.D.

at

272).

34.

See

id.

at

449.

35.

See

id.

36.

See

id.

at

452

(Bowman,

J.,

dissenting).

37.

Id.

38.

Lama,

818

N.E.2d

at

452

(Bowman,

J.,

dissenting)

(citing

Darius

v.

City

of

Boston,

741

N.E.2d

52,

58

(Mass.

2001)).

39.

Id.

at

452-53

(citing

Aranson

v.

Schroeder,

671

A.2d

1023, 1030

(N.H.

1995);

Pub.

Serv.

Co.

of

N.M

v.

Lyons,

10

P.3d

166,

173

(N.M.

Ct.

App.

2000)).

[Vol.

30

A

T

ISSUE

WAIVER

OF

THE

A

TTORNEY-CLIENT

PRIVILEGE

IN

ILLINOIS

The

Second

District

Court

of

Appeals backed

off

of

its

Lama

decision

three

years

later

in

In

re

Estate

of

Wright.

40

In

re

Estate

of

Wright,

the

court

stated that

Judge

Bowman's

Lama

dissent

was

"well-reasoned"

and

that

"[g]iven

the controversy surrounding the

rule

adopted

in

Lama"

the

holding

of

Lama

is

to

be confined

to

the

facts

of

that

case.

41

Although the

In

re

Estate

of

Wright

court

noted the

"substantial criticism"

brought

against

the

Hearn

test,

it

did

not

explicitly

reject

that

approach

or

elucidate

a

test

to

be

applied.

4a

Two

years

before

Lama,

the

First

District

Appellate

Court

took

up

a

in

Shapo

v.

Tires

'n

Tracks,

Inc.,

where the

defendant

argued

that

the

settlement agreement

entered

into

on

its

behalf

was

void

because

its

counsel lacked

authority

to

bind

it.

43

The

defendant

then

attempted

to

block

the

plaintiffs

efforts

to

subpoena

its

former counsel

to

inquire

into

their

authority

to

settle

on

behalf

of

the

defendant.

44

The court

found that

the

defendant

waived

its

attorney-client

privilege

regarding

the

circumstances

surrounding

the

settlement

agreement when

it

asserted that

the

agreement

was

void based

on

its

attorneys'

lack

of

authority.

45

Regardless

of

which

test

is

employed,

the

attorneys'

conduct

was

placed

"at

issue,"

and

thus this

finding

of

waiver-while

proper-sheds

little light

on

the

standard

to

ap-

ply.

The

only clues

found

in

Shapo

is

the

court's

statement

that

the

attor-

ney-client

privilege

"may

be

waived

as

to

a

communication

-put

'at

issue'

by

a

party

who

is

a

holder

of

the privilege" without

explaining

what

it

means

to

place

a

communication

"at issue."

46

The

court

stated

that,

for

example,

the privilege

is

waived

when

a

client

sues

her former

attorney for

malprac-

tice

or

when

an

attorney

sues

her

client

for fees

(but

this

example

is

errone-

ous

under

the

court's

own

standard

because

the

attorney

is

not

the

holder

of

the

privilege).,

7

In

Western

States

Insurance

Co.

v.

0

'Hara,

48

the

Fourth

District

Court

of

Appeals

found

that

the

plaintiff-insurance

company

had waived

its

attor-

ney-client

privilege regarding

a

settlement

by

seeking

a

declaratory

judg-

ment

that

the

settlement

had

been

made

in

good

faith.

However,

in

so

find-

ing,

the

court distinguished

between

communications "relevant"

to

the

dis-

40.

881

N.E.2d

362

(11.

App.

Ct.

2007).

41.

Id.

at

367.

42.

Id.

43.

782

N.E.2d

813,

816

(I11.

App.

Ct.

2002).

44.

Id.

at

816-17.

45.

See

id.

at

819-20.

46.

Id.

at

819.

47.

See

id.

48. 828

N.E.2d

842

(III.

App.

Ct.

2005).

2010]

NORTHERN

ILLINOIS

UNIVERSITY

LAW REVIEW

pute

from

those

placed

"at

issue"--perhaps

(although

not

explicitly)

indi-

cating

discontent

with

the

Hearn

test.

4

9

Illinois

courts

have

consistently

found

implied

waiver

of

the

attorney-

client

privilege when

a

client

sues

an

attorney for

malpractice.

50

That

waiv-

er

is

not

limited

to

the

malpractice

action;

once

waiver

has

occurred,

the

previously-privileged

communications

are

discoverable

by

third-parties

in

other

actions.

5

"

Similar

to

malpractice

actions,

the attorney-client

privilege

is

waived

by

a

client

in

a

criminal

action when

the

client

asserts

ineffective

assistance

of

counsel

in

an

attempt

to obtain

post-conviction

relief.

52

This

waiver

is

sensible

because

the

client,

by

calling

the

attorney's

performance

into

question,

has

placed

privileged

communications

at

issue

but

does little

to

define

which

test

to

employ.

B.

A

TEST

FOR

ALL

SEASONS

Consistent

application

of

at

issue

waiver

in

Illinois

has

suffered

for

want

of

a

definitive

test. Lacking

measured

guidance,

courts

have

too

often

weighed

the equities

in

the

individual

case

in

determining

waiver

of

an

ab-

solute

privilege.

Consistent

application

of

law

is

always

important,

but

it

is

particularly

paramount

in

the

field

of

privilege.

Uncertainty

in

waiver

chills

clients'

communications

with

their

legal

advisors,

thereby

depreciating

the

effectiveness

and

efficiency

of

counsel.

Illinois'

lack

of

a

definitive

test

does

bless

it

with

the

benefit

of

the

hindsight

of

other

jurisdictions'

experiments-and

follies-with

at

issue

waiver.

Although

many courts

jumped

at

the three-pronged

Hearn

test

at

its

conception,

borrowed

wisdom

counsels

against

its

adoption

in

Illinois.

The

Hearn

test,

with

its

central

inquiry

dependent

on

relevance,

is

misfocused:

49.

Id.

at

851.

50.

See

In re

Marriage

of

Bielawski,

764

N.E.2d

1254,

1263

(11.

App.

Ct.

2002)

("When

a

client

sues

her

attorney

for

malpractice,

waiver

is

applicable to

earlier

communica-

tions

between

the

now-adversarial

parties.");

SPSS,

Inc.

v.

Carnahan-Walsh,

641

N.E.2d

984,

988

(I1.

App.

Ct.

1994)

("[A]ny

expectation

of

confidentiality

regarding the

alleged

communication

[the

plaintiffs

former

attorney]

had

with

the

dissenters

regarding

the

value

of

the stock

was

waived

when

[the

plaintiff]

sued

[its

former

attorney] not

just

in

this

ap-

praisal

action,

but

when

it

filed

a

legal malpractice

claim

against

[the

attorney].").

51.

See

Marriage

of

Bielawski,

764

N.E.2d

at

1263-64.

52.

See

People

v.

O'Banner,

575

N.E.2d

1261,

1270

(Il.

App.

Ct.

1991)

("Where

a

defendant has

asserted

ineffective

assistance

of

counsel

and thereby

put

in

issue

the

sub-

stance

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.");

see

also

People

v.

Romero,

470

N.E.2d

1080,

1082

(111.

App.

Ct.

1984)

("By

questioning

his attorney's

handling

of

the

case

and

putting

into

issue

the

substance

of

the

conversations

between

himself

and

his

attorney,

defendant

waived

the

attorney-client

privilege,

and the

trial

court

did not

err

in

allowing

counsel

to

testify

as

to

his

conversations

with

defendant.").

[Vol.

30

AT

ISSUE

WAIVER

OF

THE

A

TTORNEY-CLIENT

PRIVILEGE

IN

ILLINOIS

These

decisions

[following

Hearn]

are

of

dubious

validity.

While

the

opinions

dress up

their

analysis

with

a

checklist

of

factors,

they

appear

to

rest

on

a

conclusion

that

the

in-

formation sought

is

relevant

and

should

in

fairness

be

dis-

closed.

Relevance

is

not

the

standard for

determining

whether

or

not

evidence

should

be

protected

from

disclo-

53

sure

....

As

one

court

recently

recognized:

"Nowhere

in

the

Hearn

test

is

found

the

essential

element

of

reliance

on

privileged

advice

in the

assertion

of

the

claim

or

defense

in

order

to

effect

a

waiver.

54

Rather than

focus on

relevancy and fairness

like

the

Hearn

test,

the

an-

ticipatory

waiver

test

requires

a

litigant

to

choose

to

actually

place

a

privi-

leged

communication

at

issue

for

at

issue

waiver

to

occur.

55

By

focusing

on

relevancy

and fairness,

the

Hearn

test

seeks

to remedy

the

"problem"

caused

by

the

truth-suppressing

effect

of

the

attorney-client

privilege. The

anticipatory

waiver

test,

on

the

other

hand,

seeks to

address

the

problem

created

by

one

party

selectively

relying

on

a

privileged

communication

while

attempting

to

shield other privileged

communications-thereby

"gar-

bling"

the

truth.

56

It

is

only

in

this

"truth-garbling"

scenario,

rather

than

the

truth-suppressing

scenario

(a

scenario

inherent with

all

privileges),

that

waiver

of

the

privilege should

be

found.

III.

CONCLUSION

Illinois

courts

should, consistent

with

Judge

Bowman's

dissent

in

La-

ma,

adopt

the

anticipatory

waiver

approach

to

deciding issues

of

at

issue

waiver

of

the

attorney-client

privilege.

57

This

test

finds

waiver

only

where

a

privilege-holder

attempts

to

offensively

use privileged information

to

defeat

a

claim or defense.

The

privilege-holder

therefore

rightly

acts

as

master

of

the

privilege and controls

its

invocation

or

waiver.

A

lesser

threshold

of

protection

would compromise

the

privilege

too

gravely.

Although

privileg-

es are

not

to

be

created

cavalierly,

when

they

are

found

they

should

not

be

waived lightly.

53.

Rhone-Poulenc Rorer

v.

Home

Indem.

Co.,

32

F.3d

851,

864

(3d

Cir.

1994).

54.

In re

Erie,

546

F.3d

222,

229

(2d Cir.

2008).

55.

See

supra

Part

I.A-B.

56.

See,

e.g.,

Wardleigh

v.

Second

Judicial Dist.

Court,

891

P.2d

1180,

1186

(Nev.

1995).

57.

Although

Judge Bowman

did

not

recommend

the

anticipatory

waiver

approach

by

name,

it

is

consistent

with

his

advice.

See

Lama

v.

Preskill,

818

N.E.2d

443,

452-53

(I11

App. Ct.

2004) (Bowman,

J.,

dissenting).

2010]