People v. Radojcic
2012 IL App (1st) 102698
Ill. App. Ct.2012Background
- People v. Radojcic involves attorney-client privilege in a financial institution fraud prosecution; Helfand and other individuals were potential witnesses; the trial court struck Helfand from the witness list citing privilege; the State appealed under Rule 604(a)(1); the appellate court reviews de novo the privilege issue.
- Patterson testified grand jury that Radojcic used straw purchasers and concealed loan funds through Jewel Windows and related entities to obtain loans.
- Helfand allegedly prepared documents converting properties and deeds for straw purchasers and subsequent transfers to entities controlled by Radojcic.
- Aranyos testified as a straw purchaser with false income/assets statements; she received funds from Patterson and from Radojcic-controlled entities, with proceeds loaned from banks.
- The State argued that the attorney-client privilege did not bar Helfand’s testimony because the communications could have facilitated the crimes, requiring in-camera review; the trial court did not properly analyze whether the communications themselves could show privilege loss.
- The appellate court held de novo that the trial court should have engaged in in-camera review to assess whether the communications between Radojcic and Helfand could reveal a loss of privilege and, ultimately, that the privilege did not bar Helfand’s testimony; the matter was reversed and remanded for trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Procedural propriety for privilege ruling | State contends proper in-camera review is required | Radojcic argues no sufficient basis for in-camera review | Court must consider in-camera review if facts support possible privilege loss |
| Whether communications could show loss of privilege | Patterson's testimony shows instructions to Helfand furthered crimes | Patterson as conduit may negate privilege; or agent issues limit privilege | Sufficient evidence to show privilege does not apply; Helfand may testify |
Key Cases Cited
- In re Decker, 153 Ill.2d 298 (1992) (sets the general rule and procedure for crime-fraud exception)
- United States v. Zolin, 491 U.S. 554 (1989) (permits in-camera review when crime-fraud exception may apply)
- Decker (follow-up), 153 Ill.2d 298 (1992) (establishes procedure for privilege vs. crime-fraud)
- Simms v. State, 192 Ill.2d 348 (2000) (waiver implications when third party is present)
- Lama v. Preskill, 353 Ill.App.3d 300 (2004) (communications through a proper conduit affect privilege)
- Mueller Industries, Inc. v. Berkman, 399 Ill.App.3d 456 (2010) (Mueller construed Decker on privilege review; clarified standards)
- Radiac Abrasives, Inc. v. Diamond Technologies, Inc., 177 Ill.App.3d 628 (1988) (recognizes that communications aiding crime can negate privilege)
- People v. Adam, 51 Ill.2d 46 (1972) (explains waiver when third-party recipient is not agent)
- United States v. BDO Seidman, LLP, 492 F.3d 806 (7th Cir. 2007) (treatment of privilege in federal context)