When you are a divorce attorney, you are always the bad guy in someone else’s movie.
An Illinois divorce attorney owes numerous duties to their own client.
“A lawyer shall provide competent representation to a client.” Ill. Sup. Ct. R. 1.1
“A lawyer shall act with reasonable diligence and promptness in representing a client.” Ill. Sup. Ct. R. 1.3
“A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent” Ill. Sup. Ct. R. 1.6
“A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter” Ill. Sup. Ct. R. 1.9
Even when an Illinois divorce lawyer does not officially represent someone, they still have obligations towards a prospective client.
“Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information” Ill. Sup. Ct. R. 1.18
A divorce attorney does not have any kind of obligation toward the adverse party in a divorce (the spouse of the person the divorce attorney is representing).
“The traditional, general rule has been that the attorney is liable only to his client, not to third persons.” Pelham v. Griesheimer, 440 NE 2d 96 – Ill: Supreme Court 1982
A divorce attorney’s actions may be deemed damaging to the represented party’s spouse or their children but an Illinois divorce attorney has no obligation to those people.
“[F]or a nonclient to succeed in a negligence action against an attorney, he must prove that the primary purpose and intent of the attorney-client relationship itself was to benefit or influence the third party.” Pelham v. Griesheimer, 440 NE 2d 96 – Ill: Supreme Court 1982
A divorce attorney cannot have a duty apart from the divorce attorney’s duty to their client.
Illinois Divorce Lawyer – Law Office of Russell D. Knight
Russell Knight
Russell D. Knight is a Chicago divorce lawyer who has devoted his practice to Illinois family law, writing more than 750 articles that break down complex divorce issues into clear, practical guidance. He has been published by the Illinois State Bar Association and quoted by major national outlets, reflecting the depth of his knowledge and the clarity of his explanations.
Attorney Knight brings advanced courtroom and deposition training to every case, including programs through NITA and the National Family Law Trial Institute. He also serves as an author and educator in the field, including writing a chapter for the IICLE Family Law: Dissolutions of Marriage Court Proceedings 2024 Edition on obtaining Orders of Protection.
“Where a client’s interest is involved in a proceeding that is adversarial in nature, the existence of a duty of the attorney to another person would interfere with the undivided loyalty which the attorney owes his client and would detract from achieving the most advantageous position for his client…. Dissolution proceedings are, for the most part, adversarial in nature.” Pelham v. Griesheimer, 440 NE 2d 96 – Ill: Supreme Court 1982
The responsibility for the havoc a divorce can cause to a family, especially the children, cannot be laid at the feet of either divorce attorney.
“To conclude that an attorney representing one of the spouses also owes a legal duty to the children of the two litigants would clearly create conflict-of-interest situations.” Pelham v. Griesheimer, 440 NE 2d 96 – Ill: Supreme Court 1982
Children are the only conceivable third parties who could be impacted by a divorce. If a child’s best interests are deemed necessary of a legal counsel’s protection, an Illinois divorce court will appoint an attorney to represent the child’s best interests.
“In any proceedings involving the support, custody, visitation, allocation of parental responsibilities, education, parentage, property interest, or general welfare of a minor or dependent child, the court may, on its own motion or that of any party, appoint an attorney to serve in one of the following capacities to address the issues the court delineates:
(1)Attorney. The attorney shall provide independent legal counsel for the child and shall owe the same duties of undivided loyalty, confidentiality, and competent representation as are due an adult client.
(2)Guardian ad litem.
(2)Child Representative”” 750 ILCS 5/506(a)
A child’s attorney is afforded immunity from any lawsuit when they are acting as an attorney for the child’s best interests.
“Guardians ad litem and court-appointed experts, including psychiatrists, are absolutely immune from liability for damages when they act at the court’s direction. [Citations.] They are arms of the court, much like special masters, and deserve protection from harassment by disappointed litigants, just as judges do. Experts asked by the court to advise on what disposition will serve the best interests of a child in a custody proceeding need absolute immunity in order to be able to fulfill their obligations `without the worry of intimidation and harassment from dissatisfied parents.’ [Citation.] This principle is applicable to a child’s representative, who although bound to consult the child is not bound by the child’s wishes but rather by the child’s best interests, and is thus a neutral, much like a court-appointed expert witness.” Cooney v. Rossiter, 583 F.3d 967, 970 (7th Cir. 2009).
Likewise, the rest of the divorce court personnel are immune from being sued.
“A judge is absolutely immune from liability for acts committed while exercising the authority vested in him. This doctrine of judicial immunity is subject to only two exceptions: namely, actions not taken in the judge’s judicial capacity and actions taken in the complete absence of all jurisdiction.” Grund v. Donegan, 298 Ill. App. 3d 1034 (1998)
Even extreme behavior by a divorce attorney is likely to be, if not allowed, at least not sanctionable because of the absolute-litigation privilege.
“The absolute-litigation privilege immunizes certain statements and conduct by attorneys in the course of litigation.” Doe v. Williams McCarthy, LLP, 2017 IL App (2d) 160860, ¶ 19. The purpose of the absolute-litigation privilege is to allow attorneys “ ‘the utmostfreedom in their efforts to secure justice for their clients.’ ” Kurczaba v. Pollock, 318 Ill. App. 3d 686, 701-02 (2000) (quoting Restatement (Second) of Torts § 586 cmt. a, at 247 (1977)). The absolute-litigation privilege is based on section 586 of the Restatement (Second) of Torts, which provides that an attorney 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 a part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding.” Restatement (Second) of Torts § 586 (1977)
| Legal Actor | Duty or Protection | Description |
|---|---|---|
| Divorce attorney | Duty to client only | Cannot be sued by the opposing spouse unless the attorney’s actions were meant to benefit them directly |
| Child representative | Legal immunity | Cannot be sued when acting in the child’s best interests under court appointment |
| Judge | Judicial immunity | Cannot be sued for actions taken while performing judicial duties |
| Attorneys in litigation | Litigation privilege | Statements and conduct during litigation are protected, even if harmful or offensive |
| Court-appointed experts | Legal immunity | Protected from lawsuits when acting under the court’s direction |
If the divorce process has been so damaging that you are trying to sue the various actors in your divorce, you have my deepest sympathies. However, your best strategy moving forward is to remove yourself from the process entirely.
“There’s an old saying that applies to me: you can’t lose a game if you don’t play the game.” – William Shakespeare.
You are upset at the result as much as the process. The result is the divorce court’s orders. More court means more orders.
The orders that have been entered must be followed…but only to the extent that your failure to follow the orders is not willful or contumacious. The question of what orders you need to follow and to what extent the orders must be followed is often the more fruitful path when you have been through a toxic divorce.
If you would like to discuss how to remove yourself from the Illinois divorce process to the greatest extent possible, I probably have some creative ideas. Contact my Chicago, Illinois family law firm to discuss your case with an experienced Illinois divorce attorney.
