Doe v. Williams McCarthy, LLP, 2017 IL App (2d) 160860

Background

Jane A. Doe sued Williams McCarthy, LLP, attorney Clayton Lindsey, and Treva Sarver for allegedly disclosing Doe’s mental‑health records during prior trust litigation in violation of the Illinois Mental Health and Developmental Disabilities Confidentiality Act (the Act) and a HIPAA protective order.
Doe alleged defendants issued subpoenas, placed records in the court file (accessible to the public before the file was sealed), disclosed records to third parties, threatened providers with contempt, and made public statements about her mental health.
Doe pleaded five counts: (I) violation of the Act; (II) legal malpractice (Williams McCarthy and Lindsey); (III) negligent supervision (Williams McCarthy); (IV) public disclosure of private facts (invasion of privacy); and (V) intentional infliction of emotional distress.
Defendants moved to dismiss under 735 ILCS 5/2‑619, asserting the absolute‑litigation privilege and arguing no duty existed to support the malpractice/supervision claims. The trial court granted the motion, dismissing all counts.
On appeal Doe challenged only counts I, IV, and V (statutory Act claim and the two common‑law torts). The appellate court affirmed dismissal of counts IV and V but reversed dismissal of count I and remanded.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the absolute‑litigation privilege bars a statutory claim under the Illinois Mental Health and Developmental Disabilities Confidentiality Act (count I).	The privilege should not defeat the Act’s private right of action; the Act expressly makes mental‑health records confidential and provides a cause of action for any aggrieved person.	The privilege immunizes disclosures and related conduct made in the course of litigation, so it bars Doe’s statutory claim arising from litigation activity.	The absolute‑litigation privilege does not bar a suit under the Act; statutory protections control. Count I reversed and remanded.
Whether the absolute‑litigation privilege bars common‑law invasion of privacy by public disclosure of private facts (count IV).	The privilege should not apply because disclosures reached third parties and the public.	The privilege shields communications and litigation‑related conduct pertinent to the case, including filings, subpoenas, depositions, and in‑court statements.	Privilege applies to invasion‑of‑privacy claim tied to litigation conduct; dismissal of count IV affirmed.
Whether the absolute‑litigation privilege bars intentional infliction of emotional distress (count V).	Doe argued extreme misconduct; privilege shouldn’t insulate abusive conduct.	The privilege protects litigation‑related acts even if harmful, when they are pertinent to the proceeding.	Privilege applies to IIED arising from litigation conduct; dismissal of count V affirmed.
(Procedural/duty issue resolved below) Whether attorneys owed Doe a duty for malpractice/negligent supervision (counts II–III).	Doe argued a third‑party beneficiary duty based on a protective HIPAA order.	Defendants argued no duty extended to Doe; the order was not drafted primarily for her benefit.	Trial court found no duty and dismissed counts II–III; plaintiff did not pursue these issues on appeal (court left those dismissals intact).

Key Cases Cited

Medow v. Flavin, 336 Ill. App. 3d 20 (applying the absolute‑litigation privilege to attorney statements made in litigation)
Kurczaba v. Pollock, 318 Ill. App. 3d 686 (limited scope of attorney litigation privilege; third‑party communications unrelated to suit not protected)
Thompson v. Frank, 313 Ill. App. 3d 661 (discussing that absolute privilege traditionally does not cover attorney out‑of‑court communications to unrelated outsiders)
Renzi v. Morrison, 249 Ill. App. 3d 5 (witness immunity does not bar statutory claim under the Act; statutory protection prevails)
Norskog v. Pfiel, 197 Ill. 2d 60 (recognizing the Act as a legislative ‘‘strong statement’’ on confidentiality of mental‑health records)