Some divorce litigants perceive their opposing counsels as soldiers in a war who are ripe for the same punishment they wish to dole out on their spouse. In reality, there is little to be done to an opposing counsel beyond being a pesty adverse party. In furtherance of promoting litigation pestilence, an adverse party may wish to subpoena the opposing counsel as a way to drag the attorney, personally, into the divorce battle which is consuming their life. This right to subpoena an opposing counsel is limited, wrong-headed and generally ill-advised. But…here we are.
Subpoenaing People In An Illinois Divorce.
If you want to know something during divorce litigation, just ask.
“[A] party may obtain by discovery full disclosure regarding any matter relevant to the subject matter involved in the pending action” Ill. Sup. Ct. R. 201(b)(1)
You can request documents and information from the opposing party via a Notice to Produce, Interrogatories or a Request To Admit.
To get information from third parties, you can issue subpoenas.
Subpoenas are a formal demand to appear and possibly produce documents. The appearance is usually unnecessary if the requested documents are produced. So, subpoenas usually indicate that appearance is waived if the documents are produced in advance.
Subpoenas must be answered by third parties. If a subpoena is not answered the subpoena issuer can move the court to compel the answer.
“If a party or other deponent refuses to answer any written question upon the taking of his or her deposition or if a party fails to answer any interrogatory served upon him or her, or to comply with a request for the production of documents or tangible things or inspection of real property, the proponent of the question or interrogatory or the party serving the request may on like notice move for an order compelling an answer or compliance with the request.” Ill. Sup. Ct. R. 219(a)
If anyone objects to a subpoena, they must move a court to “quash” (a fun word) the subpoena.
“For good cause shown, the court on motion may quash or modify any subpoena” 735 ILCS 5/2-1101
If you subpoena an opposing counsel, expect a motion to quash to be issued much sooner than the documents you are requesting.
Attorney’s Motion To Quash A Subpoena Directed At Them, Personally.
An attorney subject to a subpoena will acknowledge that discovery is broad but limited.
“The right to discovery is also limited to disclosure regarding matters relevant to the subject matter involved in the pending action. Discovery should be denied where there is insufficient evidence that the requested discovery is relevant.” Mistler v. Mancini, 443 NE 2d 1125 – Ill: Appellate Court, 2nd Dist. 1982
What could a lawyer know that is not prohibited from disclosure by attorney-client privilege?
“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
Even relevant information is not discoverable if it is covered by 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)
Every kind of communication from a lawyer and to a lawyer is privileged and, thus, not disclosable.
“Where legal advice of any kind is sought from a lawyer in his or her capacity as a lawyer, the communications relating to that purpose, made in confidence by the client, are protected from disclosure by the client or lawyer, unless the protection is waived.” Center Partners, Ltd. v. Growth Head GP, LLC, 2012 IL 113107, ¶ 30.
Attorney-client privilege includes “both the client’s communications to the attorney and the attorney’s advice to the client.” People v. Radojcic, 2013 IL 114197, ¶ 40.
Beyond attorney-client privilege is the acknowledgment that lawyers are not parties to a case and have no business becoming witnesses in the cases they are litigating.
“Undoubtedly, counsel’s task in preparing for trial would be much easier if he could dispense with interrogatories, document requests, and depositions of lay persons, and simply depose opposing counsel in an attempt to identify the information that opposing counsel has decided is relevant and important to his legal theories and strategy. The practice of forcing trial counsel to testify as a witness, however, has long been discouraged, see Hickman v. Taylor, 329 U.S. 495, 513, 67 S.Ct. 385, 394, 91 L.Ed. 451 (1947) (it causes “the standards of the profession [to] suffer”), and recognized as disrupting the adversarial nature of our judicial system, see id. at 516, 67 S.Ct. at 396 (Jackson, J., concurring) (“Discovery was hardly intended to enable a learned profession to perform its functions * * * on wits borrowed from the adversary.”). Taking the deposition of opposing counsel not only disrupts the adversarial system and lowers the standards of the profession, but it also adds to the already burdensome time and costs of litigation. It is not hard to imagine additional pretrial delays to resolve work-product and attorney-client objections, as well as delays to resolve collateral issues raised by the attorney’s testimony. Finally, the practice of deposing opposing counsel detracts from the quality of client representation. Counsel should be free to devote his or her time and efforts to preparing the client’s case without fear of being interrogated by his or her opponent. Moreover, the “chilling effect” that such practice will have on the truthful communications from the client to the attorney is obvious.” Shelton v. American Motors Corp., 805 F. 2d 1323 – Court of Appeals, 8th Circuit 1986 (while this is a federal case it has been cited with approval by In re Marriage of Baumgartner, 384 Ill. App. 3d39 (2008))
“Discovery was hardly intended to enable a learned profession to perform its functions either without wits or on wits borrowed from the adversary.” Hickman v. Taylor, 329 US 495 – Supreme Court 1947
Any subpoena directed at an attorney will likely be framed as an “attempt to obtain information to which that party is not entitled.”
“The court may order that information obtained through abuse of discovery procedures be suppressed. If a party wilfully obtains or attempts to obtain information by an improper discovery method, wilfully obtains or attempts to obtain information to which that party is not entitled, or otherwise abuses these discovery rules, the court may enter any order provided for in paragraph (c) of this rule.” Ill. Sup. Ct. R. 219(d) (emphasis mine)
Paragraph (c) of Illinois Supreme Court Rule 219 allows for a request for sanctions for inappropriate discovery requests.
“[T]he court, upon motion or upon its own initiative, may impose upon the offending party or his or her attorney, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred as a result of the misconduct, including a reasonable attorney fee, and when the misconduct is wilful, a monetary penalty.” Ill. Sup. Ct. R. 219(d)
Why Would Anyone Want To Subpoena An Opposing Counsel?
99% of the time, subpoenas are issued to opposing counsels to find out how much the opposing counsel has been paid.
The amount an opposing counsel has been paid is important because “[i]n assessing an interim [attorney fee] award, the court shall consider all relevant factors, as presented, that appear reasonable and necessary, including to the extent applicable:
…
(H) the amount of the payment or payments made or reasonably expected to be made to the attorney for the other party.” 750 ILCS 5/501(c-1)(1)(H)
You DO NOT need a subpoena to find out how much an attorney’s been paid because the attorney is required to disclose that in the response to a petition for interim fees.
“A responsive pleading shall set out the amount of each retainer or other payment or payments, or both, previously paid to the responding party’s counsel by or on behalf of the responding party. A responsive pleading shall include costs incurred, and shall indicate whether the costs are paid or unpaid.” 750 ILCS 5/501(c-1)(1)
The opposing counsel has to sign the response including an accurate description of ALL fees charged. Failure to do so or to lie about the fees will be met with grave sanctions.
“[E]very pleading, motion and other document of a party represented by an attorney shall be signed by at least one attorney of record in his individual name…The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other document; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact…If a pleading, motion, or other document is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion or other document, including a reasonable attorney fee.” Ill. Sup. Ct. R. 137(a)
You can verify the response to the petition for interim fees by issuing a notice to produce to the actual litigant asking for evidence of any and all payments. If the numbers do not add up, issue an interrogatory with the same question and begin subpoenaing potential benefactors.
Finally, just because the opposing counsel’s been paid doesn’t mean you’re attorney’s fees will be paid in the same amount. “[N]othing in section 501(c-1)…requires the trial court to “equalize” fees in a contribution fee hearing.” In re Marriage of DeLarco, 728 NE 2d 1278 – Ill: Appellate Court, 2nd Dist. 2000
Hat tip To Jonathan Steele of Beerman LLP who filed a motion to quash that was very successful using some of the case law contained above.
If you would like to see what a motion to quash a subpoena directed at an attorney looks like, just subpoena me. I’ll send you one immediately. Alternatively, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce lawyer.
