Posted on April 25, 2020

Attorney Client Confidentiality In An Illinois Divorce

When someone hires an attorney for an Illinois divorce, they are putting a great deal of trust in that attorney.  In turn, to effectively represent a divorce client, an attorney must know as much as possible about the client…from the client themselves.  Divorces in particular can have painfully embarrassing details related to sex, drugs, and other personal issues.  A divorce attorney’s client should feel comfortable telling their attorney anything without the attorney telling someone else or being forced to reveal those secrets. This commonly referred to as “Attorney-Client confidentiality.”  So, what exactly is attorney-client confidentiality in an Illinois divorce.

Attorney-client confidentiality from the divorce lawyer’s perspective.

A secret is a secret.  And everything a divorce client tells a divorce lawyer is a secret…until the client says otherwise.

Lawyers in Illinois are governed by the Rules of Professional Responsibility as dictated by the Illinois Supreme Court.

In Illinois there is a very strict rule about attorney client confidentiality followed by a lot of exceptions.

“A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent” Ill. R. Prof’l Conduct R. 1.6 (eff. Jan 1, 2016)

This concept is referred to as the attorney-client privilege. “[T]he attorney-client privilege refers to a client’s right to refuse disclosure of confidential communications made to obtain legal advice….The privilege belongs to the client, and an attorney may assert it on a client’s behalf. The attorney-client privilege, like all testimonial privileges, inherently limits the search for truth by preventing otherwise relevant and admissible evidence from being disclosed.” MacDonald v. Wagenmaker, 2024 IL App (1st) 230089 (citations and internal quotations omitted)

This doesn’t mean that the client has to approve every little thing a lawyer communicates about the client.  The lawyer can communicate information that “is impliedly authorized in order to carry out the representation” Ill. R. Prof’l Conduct R. 1.6 (eff. Jan 1, 2016)

So, an Illinois lawyer can say “Hey, do you mind if I talk about your thoughts on the proposed settlement agreement” without getting into every little detail about what might be disclosed.

What Is Not Confidential Between A Divorce Client and an Illinois Divorce Lawyer?

There are quite a few exceptions laid out in the Illinois Rules of Professional Responsibility.

“A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

  • to prevent the client from committing a crime in circumstances other than those specified in paragraph (c); Ill. R. Prof’l Conduct R. 1.6 (eff. Jan 1, 2016)

If the client tells the lawyer that they will commit a crime in the future, the lawyer can tell someone in order to keep that crime from happening.

“A client, of course, may consult with his or her attorney about the legal implications of a proposed course of conduct, or how to defend against the legal consequences of past conduct, without triggering the crime-fraud exception. Such good-faith consultations are protected by the attorney-client privilege. The privilege does not extend, however, to a client who seeks or obtains the services of an attorney to further an ‘ongoing or future crime or fraud.'” People v. Radojcic, 998 NE 2d 1212 – Ill: Supreme Court 2013

“The exception’s rationale recognizes a lawyer’s professional services should not assist in committing a crime or fraud; advice given for those purposes would amount to participating in a conspiracy” MacDonald v. Wagenmaker, 2024 IL App (1st) 230089

But, if the crime happened in the past, the lawyer has to keep it a secret.

There is a big fat clarification later in the rules.

“(c) A lawyer shall reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm.” Ill. R. Prof’l Conduct R. 1.6 (eff. Jan 1, 2016)

If someone may get hurt, there are no ifs, ands or buts.  The lawyer MUST tell someone.

If a divorce lawyer’s client is going to do something fishy financially which may or may not be illegal the lawyer MAY disclose the information but the lawyer not required to.

     “(2) to prevent the client from committing fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;

      (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;” Ill. R. Prof’l Conduct R. 1.6 (eff. Jan 1, 2016)

The lawyer has the right to follow his conscience, withdraw from the case and inform whoever may be harmed by the lawyer’s former client’s scheme.

If you are hatching a scheme and you do not like that your lawyer is wary to help you do something unethical, the lawyer will not be left alone with his thoughts. The lawyer can discuss what you said to see if it is, in fact, an ethical violation.

     “ (4) to secure legal advice about the lawyer’s compliance with these Rules;” Ill. R. Prof’l Conduct R. 1.6 (eff. Jan 1, 2016)

And if you sue the lawyer and/or file a complaint with the Illinois Attorney Registration and Disciplinary Committee, the lawyer can use whatever you told the lawyer in order for the lawyer to defend themselves from your accusations.

      “(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; “ Ill. R. Prof’l Conduct R. 1.6 (eff. Jan 1, 2016)

Furthermore, if a judge tells a lawyer to reveal a confidential communication, the lawyer must do so whether the judge is right or not.

(6) to comply with other law or a court order.” Ill. R. Prof’l Conduct R. 1.6 (eff. Jan 1, 2016)

A judge only tells a lawyer to reveal confidential information if there’s sufficient evidence to warrant a crime-fraud exemption to the attorney-client confidentiality standard.

“To show the crime-fraud exception applies, a party must demonstrate that, when consulting the attorney, the client knew or should have known that the intended conduct was illegal. The party seeking disclosure cannot simply rely on allegations of illegality or fraud unsupported by evidence but must make a prima facie showing.” MacDonald v. Wagenmaker, 2024 IL App (1st) 230089 (citations omitted)

The alleged behavior must be a crime or fraud to require a violation of attorney-client privilege. Any other bad behavior aided and abetted by an attorney does not allow for a court to order the attorney to testify or turn over privileged documents.

“Extending the crime-fraud exception to claims [without verified fraud] would risk deterring clients from seeking legal advice, chilling lawyers from giving advice, and eroding the attorney-client privilege’s protection of legitimate communications.” MacDonald v. Wagenmaker, 2024 IL App (1st) 230089

A Divorce Lawyer’s Duty To Secure Your Private Documents

In the process of a divorce, your divorce lawyer will ask you for a LOT of private information.  Mostly about your finances.

In this process, your divorce lawyer needs to keep this info private.

“(e) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” Ill. R. Prof’l Conduct R. 1.6 (eff. Jan 1, 2016)  

This means that the office should be locked when no one is there and that access to the electronic documents should be protected by a password.  Both are reasonable protections. 

I send out a letter after every case letting the client know that I am destroying their file and they can come and pick their file up if they don’t want the file destroyed.

Every final divorce order says that discovery was complete or waived by agreement. Additionally, all temporary orders and motions are moot at the entry of a final judgment.  So, everything is irrelevant beyond the final documents which the client and the courthouse should have a copy of.

Work Product Doctrine And Illinois Divorce

Any communication between yourself and an attorney is covered by “the work product doctrine.” That communication can never be revealed to a judge unless you allow it.

The work product doctrine does shield an attorney’s mental impressions, opinions and legal conclusions. Hickman v. Taylor, 329 U.S. 495 (1947).

But, the underlying facts are still fair game for the court to look at.

For example, if your divorce lawyer said in a letter to you “The money you hid wasn’t your greatest idea,” the work product doctrine would bar the court from seeing that the divorce lawyer said it “wasn’t your greatest idea”. But just because your lawyer explicitly or implicitly referenced the hidden money wouldn’t bar the court from investigating the fundamental fact that you hid money.

What If Something Confidential Gets Disclosed By My Divorce Lawyer?

Courts all over America really take the work product doctrine seriously.

“Our adversarial system of justice cannot function properly unless an attorney is given a zone of privacy within which to prepare the client’s case and plan strategy, without undue interference.” Davis v. Emery Air Freight Corp., 212 F.R.D. 432, 434 (D. Me. 2003) (quoting In re San Juan Dupont Plaza Hotel Fire Litig., 859 F.2d 1007, 1014 (1st Cir. 1988))

Illinois is explicit that the other side cannot use attorney-client confidential information against you in court.

“Except as otherwise required by the Constitution of the United States, the Constitution of Illinois, or provided by applicable statute or rule prescribed by the Supreme Court, the privilege of a witness, person, government, state, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by Illinois courts in the light of reason and experience.” Illinois Rule of Evidence 501 (eff. Jan. 1, 2011)

The “privilege” this rule is referring to is the attorney-client privilege. The attorney-client privilege protects communications between a client and a professional legal advisor when the client seeks legal advice. In addition, it protects the confidentiality of communications between a party or the party’s agents and the attorney. Janousek v. Slotky, 2012 IL App (1st) 113432, ¶ 31, citing People v. Knuckles, 165 Ill. 2d 125, 131 (1995)

This privilege is sacrosanct…unless the client waives the privilege.

“Disclosure Made in an Illinois Proceeding or to an Illinois Office or Agency; Scope of a Waiver. 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.” Illinois Rule of Evidence 501 (eff. Jan. 1, 2013)

So, if your communication with your attorney becomes public due to your own actions, that communication will be admissible in court.

But, if you didn’t allow the communication to be disclosed, the court will not consider it and will pretend that the communication never happened at all.

If the communication between you and your attorney was an accident or happened due to factors beyond your control (Ex: your ex hacked into your email), the attorney-client communication will not be admitted as evidence in court.

“Inadvertent Disclosure. When made in an Illinois proceeding or to an Illinois office or agency, the disclosure does not operate as a waiver in any proceeding if:

(1) the disclosure is inadvertent;

(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and

(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Supreme Court Rule 201(p).” Illinois Rule of Evidence 501 (eff. Jan. 1, 2013) 

Illinois Supreme Court Rule 201(p) is no joke.  You can inform the other side that they have confidential information and they MUST destroy that confidential information.

“Asserting Privilege or Work Product Following Discovery Disclosure. If information inadvertently produced in discovery is subject to a claim of privilege or of work-product protection, the party making the claim may notify any party that received the information of the claim and the basis for it.  After being notified, each receiving party must promptly return, sequester, or destroy the specified information and any copies; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the receiving party disclosed the information to third parties before being notified; and may promptly present the information to the court under seal for a determination of the claim.  The producing party must also preserve the information until the claim is resolved.” Ill. S. Ct. R. 201(p) (eff. May 29, 2014)

If you have concerns about what you’ve told your attorney in your Illinois divorce, contact my Chicago family law office to speak with an experienced Chicago divorce lawyer.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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