Posted on July 18, 2021

Privileged Communication In An Illinois Divorce Hearing or Trial

The Illinois courts and legislature have decided that everyone should have a few places where they can communicate safely without fear of that communication being repeated. This concept is known as “privilege” and it prevents a party from divulging information that was communicated in a special relationship.

There are many special relationships recognized by Illinois law. Let’s go through each of them individually and what information they protect from being discussed in an Illinois court.

Attorney-Client Privilege In An Illinois Divorce

Anything a person’s attorney tells them or that they tell their attorney does not have to be disclosed in an Illinois divorce trial.

“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 discovery procedure.” Ill. Sup. Ct. R. 201(b)(2)

Any questions asking about communication with an attorney can be interrupted with an “Objection! The question calls for privileged information!”

“In defining the attorney-client privilege, this court has stated that where legal advice of any kind is sought from a professional legal advisor in his capacity as such, the communications relating to that purpose, made in confidence by the client, are protected from disclosure by himself or the legal adviser” Fischel & Kahn, Ltd. v. Van Straaten Gallery, Inc., 727 NE 2d 240 – Ill: Supreme Court 2000

“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.” Consolidation Coal Co. v. Bucyrus-Erie Co. (1982), 89 Ill.2d 103, 117-18, 59 Ill.Dec. 666, 432 N.E.2d 250.

The attorney-client communication has to be private though. If someone overheard at the time it was made, that waives the privilege. This is why your attorney always talks to you alone.

“The attorney-client privilege is 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.“ Waste Management, Inc. v. INTER. SURPLUS LINES INS. CO., 579 NE 2d 322 – Ill: Supreme Court 1991

It is not just attorney-client communication that is privileged. Almost everything an attorney does for a client is also not disclosable in an Illinois divorce trial or hearing. This is called the “Work Product Doctrine”

“Material prepared by or for a party in preparation for trial is subject to discovery only if it does not contain or disclose the theories, mental impressions, or litigation plans of the party’s attorney.” Rule 201 – General Discovery Provisions, Ill. Sup. Ct. R. 201

“The work-product doctrine in Illinois, which protects against disclosure of “the theories, mental impressions, or litigation plans of [a] party’s attorney” is believed necessary to prevent complete invasion of counsel’s files.” Consolidation Coal Co. v. Bucyrus-Erie Co., 432 NE 2d 250 – Ill: Supreme Court 1982

Doctor-Patient Privilege In An Illinois Divorce Hearing or Trial

A doctor is not allowed to discuss their patient in an Illinois divorce trial unless the patient has waived the physician-patient privilege.

“No physician or surgeon shall be permitted to disclose any information he or she may have acquired in attending any patient in a professional character, necessary to enable him or her professionally to serve the patient” 735 ILCS 5/8-802

“[T]he purpose of the physician-patient privilege is to encourage free disclosure between the physician and patient and to protect the patient from the embarrassment and invasion of privacy which disclosure would entail. The physician-patient privilege, as with other statutory privileges, is a legislative balancing between relationships that society feels should be fostered through the shield of confidentiality and the interests served by disclosure of the information in a court of law.” Parkson v. Central DuPage Hospital, 435 NE 2d 140 – Ill: Appellate Court, 1st Dist. 1982

This privilege is so strong that an opposing counsel can’t even ask a doctor questions without the patient’s lawyer being present.

“[T]he public has an established and beneficial interest in both the fiducial and confidential qualities of the physician-patient relationship. In addition, the public has an interest, we believe, in having those qualities safeguarded from conduct which places them in jeopardy. These truths, combined with the fact that ex parte conferences threaten the sanctity of the physician-patient relationship while producing no additional information (other than that which is already obtainable through the regular methods of discovery), compel us to find that modern public policy prohibits ex parte conferences between a plaintiff’s treating physician and defense counsel.” Petrillo v. Syntex Laboratories, Inc., 499 NE 2d 952 – Ill: Appellate Court, 1st Dist. 1986

Therapist-Patient Privilege In An Illinois Divorce

Therapists cannot disclose a patient’s communications or any documents relating to their patient’s mental health treatment if their client objects to that disclosure.

“[A] recipient, and a therapist on behalf and in the interest of a recipient, has the privilege to refuse to disclose and to prevent the disclosure of the recipient’s record or communications.” 740 ILCS 110/10

“”Record” means any record kept by a therapist or by an agency in the course of providing mental health or developmental disabilities service to a recipient concerning the recipient and the services provided.” 740 ILCS 110/2

“The beneficent purposes of psychiatry can only be fully realized when the patient knows that what is revealed in the evaluation conferences or communications are free from judicial scrutiny unless the patient affirmatively places her mental condition into issue.” In re Marriage of Lombaer, 558 NE 2d 388 – Ill: Appellate Court, 1st Dist. 1990

It is very common, however, for a divorce litigant to make their own mental health an issue in the case. Even trying to prove that you don’t have a mental health problem (or a limited or well-managed problem) puts the party’s mental health at issue. When mental health is put at issue, the privilege is waived.

“If a patient, by way of complaint, counterclaim or affirmative defense, places in issue his physical or mental condition, then he automatically waives the privilege….” Collins v. Bair (Ind App), 252 NE2d 448 (1969)

In fact, there is no way to get exclusive possession of the marital home without bringing up one’s own mental health.

“Where there is on file a verified complaint or verified petition seeking temporary eviction from the marital residence, the court may, during the pendency of the proceeding, only in cases where the physical or mental well being of either spouse or their children is jeopardized by occupancy of the marital residence by both spouses” 750 ILCS 5/701

Accountant-Client Privilege In An Illinois Divorce Action

Accountants often have all of the financial information for a divorcing party. But, accountants aren’t supposed to disclose that information if their clients object.

“A licensed or registered CPA shall not be required by any court to divulge information or evidence which has been obtained by him in his confidential capacity as a licensed or registered CPA.” 225 ILCS 450/27

It seems like an accountant couldn’t provide any financial information about a client based on this statute but “if the client is still living, the privilege does not bar the client from voluntarily producing the information. If the client is involved in litigation and the information is otherwise discoverable, a court may order the client who is in possession of the information to disclose it.”  Brunton v. Kruger, 32 NE 3d 567 – Ill: Supreme Court 2015

An Illinois court can direct an accountant’s client to instruct his accountant to release the requested information. Which renders this privilege moot in the context of an Illinois divorce.

If an accountant was helping a lawyer, then the communication might be privileged.

“In United States v. Kovel, 296 F.2d 918, 922 (2d Cir. 1961), the Second Circuit recognized that, in certain situations, an accountant assisting a lawyer can fall within the scope of the attorney-client privilege. But the Second Circuit did not bless all attorney-accountant relationships as privileged. Instead, it distinguished between accountants hired to aid attorneys in understanding “[a]ccounting concepts,” and those hired to perform “only accounting service.” Id. In the former case, accountants function much like translators, enabling attorneys to comprehend the “foreign language” of accounting. Id. In the latter, the advice being sought is “the accountant’s rather than the lawyer’s,” meaning that no privilege attaches.” U.S. v. Hatfield, 06-CR-0550, 2009 WL 3806300 (E.D.N.Y. 2009)

Clergy-Practitioner Privilege In An Illinois Divorce Action

A person’s pastor, priest, rabbi or imam may have relevant information about a person’s capacity as a parent…but they can’t testify to it if someone objects

“A clergyman or practitioner of any religious denomination accredited by the religious body to which he or she belongs, shall not be compelled to disclose in any court, or to any administrative board or agency, or to any public officer, a confession or admission made to him or her in his or her professional character or as a spiritual advisor in the course of the discipline enjoined by the rules or practices of such religious body or of the religion which he or she professes, nor be compelled to divulge any information which has been obtained by him or her in such professional character or as such spiritual advisor.” 735 ILCS 5/8-803

The clergyman cannot be “`compelled to divulge any information which has been obtained by him or her in such professional character or as such spiritual advisor.'” Bole, 223 Ill.App.3d at 262, 165 Ill.Dec. 739, 585 N.E.2d 135; 

Husband-Wife Privilege In An Illinois Divorce Hearing Or Trial

Husbands and wives communication with each other are not admissible under Illinois evidence law, if objected to (which nobody ever does)

“The marital privilege is intended to preserve the privacy of communications between spouses.” Puterbaugh v. Puterbaugh, 764 NE 2d 582 – Ill: Appellate Court, 3rd Dist. 2002

“In all actions, husband and wife may testify for or against each other, provided that neither may testify as to any communication or admission made by either of them to the other or as to any conversation between them during marriage” 735 ILCS 5/8-801

Of course, this would make testimony about any custody issues almost impossible. So, there’s an exception for conversations about parenting matters.

“[E]xcept in actions between such husband and wife, and in actions where the custody, support, health or welfare of their children or children in either spouse’s care, custody or control is directly in issue.” 735 ILCS 5/8-801

As to other communications between a husband and wife, no Illinois case addresses this privilege in the context of a divorce. So, either spouse may be able to invoke the privilege regarding any conversation they had with their spouse that doesn’t involve parenting issues.

More interestingly, this privilege can be used to keep new spouses out of post-judgment divorce cases. A new spouse can simply invoke the privilege and say “keep me out of this.”

Parent-Child Privilege In An Illinois Divorce Hearing Or Trial

Other states have laws that protect communication between a parent and a child from being used in a court of law. Illinois has no such law.

“We decline…to introduce an additional privilege by judicial authority which would be applicable to communications between parents and children.” People v. Sanders, 457 NE 2d 1241 – Ill: Supreme Court 1983

There are plenty of other statutes that keep children from testifying in an Illinois divorce case.

Privilege Against Self-Incrimination In An Illinois Divorce

“No person… shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend.IV

This also applies in divorce cases if the testimony would possibly provide criminal evidence against the testifier.

“To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.” Hoffman v. United States, 341 U.S. 479 (1951)

So, almost any answer can allow the testifier to say “that might incriminate me so I refuse to answer.” After all, any explanation would only further incriminate the testifier.

Illinois courts don’t like this in civil cases such as divorce. Illinois courts say that if you invoke your right to refuse to testify to prevent self-incrimination, you cannot proceed in the same civil case as anything but a defendant (you cannot put on any evidence).

“[A] number of jurisdictions have overwhelmingly rejected the contention that a plaintiff in a civil action may invoke the fifth amendment privilege against self-incrimination while still maintaining the lawsuit.” In re Marriage of Roney, 773 NE 2d 213 – Ill: Appellate Court, 4th Dist. 2002

“It would be unjust to allow them to prosecute their cause of action and, at the same time, refuse to answer questions, the answers to which may substantially aid defendants or even establish a complete defense.” Galante vs. Steel City National Bank of Chicago, 384 N.E.2d 57 (1978)

Privilege, Custody and Guardian Ad Litems In An Illinois Divorce Case

Despite all of these privileges, in a custody case a guardian ad litem will likely be able to get you to waive all of the privileges in preparing his or her report for the court.

A guardian ad litem is a 3rd attorney who represents the best interests of the child and can look at ANYTHING in order to arrive at a recommendation as to those best interests.

“The guardian ad litem shall testify or submit a written report to the court regarding his or her recommendations in accordance with the best interest of the child. The report shall be made available to all parties. The guardian ad litem may be called as a witness for purposes of cross-examination regarding the guardian ad litem’s report or recommendations. The guardian ad litem shall investigate the facts of the case and interview the child and the parties.” 750 ILCS 5/506(a)(2)

“Upon appointment of a child representative, attorney for the child or guardian ad litem, the trial court shall enter an order to allow access to the child and all relevant documents.” Rule 907 – Minimum Duties and Responsibilities of Attorneys for Minor Children, Ill. Sup. Ct. R. 907

If you don’t waive your privileges so that the guardian ad litem can complete their investigation, the guardian ad litem is unlikely to recommend more parenting time or parental responsibilities in your favor.

Then in court, when the guardian ad litem testifies to any privileged communication they discovered, they will deem that you had previously waived that privilege.

Arguing Against Privilege In An Illinois Divorce Court

While all the above categories may seem like impregnable roadblocks to getting information that is deemed privilege, there are many strong arguments for accessing privileged information.

“[P]rivileges are strongly disfavored because they are in derogation of the search for truth.” In re Marriage of Daniels, 240 Ill. App. 3d 314, 324 (1992)

It is the duty of the party asserting privilege to establish that a valid privilege exemption exists that can overcome the general rule that everything is discovery

“Ordinarily, [o]ne who claims to be exempt by reason of privilege from the general rule which compels all persons to disclose the truth has the burden of showing the facts which give rise to the privilege. His mere assertion that the matter is confidential and privileged will not suffice.” Thomas v. Page, 361 Ill. App. 3d 484, 497 (2005)(Internal quotation marks omitted)

“When information or documents are withheld from disclosure or discovery on a claim that they are privileged pursuant to a common law or statutory privilege, any such claim shall be made expressly and shall be supported by a description of the nature of the documents, communications or things not produced or disclosed and the exact privilege which is being claimed.” Ill. Sup. Ct. R. 201(n)

“The purpose of [Rule 201(n)] is to enable the court to evaluate the applicability of the asserted privilege and determine the need for an in camera inspection of the documents, and also to minimize any disputes between the parties regarding those matters.” Thomas v. Page, 361 Ill. App. 3d 484, 497 (2005)

To adequately establish privilege over documents that may be included with other documents, a privilege log must be presented to the court.

“A privilege log is a discovery tool that may be used to establish a claim of privilege over certain documents or information pursuant to Illinois Supreme Court Rule 201(n) (eff. July 1, 2014).” Findlay v. Chicago Title Insurance Co., 2022 IL App (1st) 210889, ¶ 112 n.5

“[T]he [privilege] log should contain an explanation of why the document is privileged that is sufficiently detailed to allow the court to determine whether the discovery opponent has discharged its burden of establishing the requirements of the privilege” FMC Corp. v. Trimac Bulk Transportation Services, Inc., No. 98 C 5894, 2000 WL 1745179, at *1 (N.D. Ill. Nov. 27, 2000)

“Typically, a privilege log must identify each document and provide basic information, including the author, recipient, date and general nature of the document….[However,] if detailed disclosure would, in effect, reveal the very information that may be privileged, the party may tailor his response to mask such sensitive information.” Securities & Exchange Comm’n v. Thrasher, No. 92 CIV. 6987, 1996 WL 125661, at *1 (S.D.N.Y. Mar. 20, 1996).

The party asserting privilege “should be required to log each communication pursuant to Rule 201(n), and the court should conduct whatever analysis necessary to determine whether each communication falls within the…[relevant privilege] rule.” Selby v. O’Dea, 2017 IL App (1st) 151572

Privilege logs are only necessary if there is not a mix of possibly privileged and possibly non-privileged information. If a discovery request “reveals on its face that the [information] sought fall[s] within
the scope of an absolute privilege, compliance with Rule 201(n)…serves no useful purpose
and is…entirely unnecessary.” Thomas v. Page, 361 Ill. App. 3d 484, 497 (2005)

You have to know an incredible amount to preserve all of your rights in an Illinois divorce hearing or trial…and you have to know it immediately in order to make a timely objection. If you’d like to learn more about how to invoke your privilege rights in an Illinois divorce, contact my Chicago, Illinois family law firm to schedule an appointment with an experienced Chicago divorce attorney.

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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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