Adler v. Greenfield
990 N.E.2d 1219
Ill. App. Ct.2013Background
- Estate beneficiaries sue Greenfield for legal malpractice over will/ttrust planning by Perrys; discovery dispute about testator's intent.
- Plaintiffs seek communications about testamentary intent; defendants claim attorney-client privilege shields them.
- Trial court ordered production; on reconsideration held direct Greenfield-Perry communications privileged but JP Morgan-mediated ones not.
- Court directed plaintiffs to obtain JP Morgan materials; JP Morgan produced some but objected to revealing communications.
- Extensive in camera proceedings; contempt order issued against defendants for noncompliance; appeal follows.
- Appellate court holds pre-death JP Morgan communications privileged; post-death communications not privileged; waivers/at-issue arguments addressed; contempt vacated in part.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are pre-death JP Morgan communications privileged? | Adler Grafton: JP Morgan not agent; privilege not extendable. | Greenfield: JP Morgan acted as Muriel's agent; communications privileged. | Pre-death communications privileged |
| Are post-death JP Morgan communications privileged? | Post-death communications should remain confidential. | Agency ended at death; not privileged. | Post-death communications not privileged |
| Has privilege been waived or at-issue to defeat privilege? | Greenfield cannot waive; plaintiff holds privilege via estate. | Attorney's conduct at issue can waive privilege; Greenfield may place at issue. | Privilege not waived by at-issue theory; Greenfield cannot waive as attorney |
Key Cases Cited
- Norskog v. Pfiel, 197 Ill. 2d 60 (2001) (discovery orders testable via contempt; finality not required)
- Eskandani v. Phillips, 61 Ill. 2d 183 (1975) (discovery and privilege interplay)
- Lama v. Preskill, 353 Ill. App. 3d 300 (2004) (at-issue exception limited; privilege survives death)
- Sterling Finance Management, L.P. v. UBS PaineWebber, Inc., 336 Ill. App. 3d 442 (2002) (abuse of discretion standard; privilege limits discovery)
- In re Marriage of Decker, 153 Ill. 2d 298 (1992) (burden on non-client to show non-privilege; client holds privilege)
- Fischel & Kahn, Ltd. v. Van Straaten Gallery, Inc., 189 Ill. 2d 579 (2000) (at-issue and waiver concepts in privilege context)
- Center Partners, Ltd. v. Growth Head GP, LLC, 2012 IL 113107 (2012) (clarifies client holder and waiver scope of privilege)
- Hitt v. Stephens, 285 Ill. App. 3d 713 (1997) (privilege survives death except in will-contest context)