2018 IL App (1st) 170874
Ill. App. Ct.2019Background
- Frank and Margaret Scarpelli were confronted by beneficiary Anne‑Marie Poincelet in March 2015 about alleged misappropriation from trusts administered by Frank; Anne‑Marie hired McDermott Will & Emery to investigate and potentially sue.
- McDermott convened a March 19, 2015 meeting with Frank, Margaret, and their lawyer; materials shown included financial documents and draft tolling/asset management agreements; Frank and Margaret signed the documents at the meeting.
- Anne‑Marie (represented by McDermott) later sued Frank and Margaret in Cook County; Frank and Margaret filed separate suits in Kane County against Anne‑Marie and McDermott alleging, inter alia, intrusion upon seclusion.
- The Kane County suits were transferred to Cook County and consolidated with Anne‑Marie’s action; McDermott moved to dismiss the intrusion claims against it under section 2‑615, invoking the attorney litigation privilege.
- The trial court dismissed the intrusion upon seclusion claims with prejudice, relying on O’Callaghan and the attorney‑litigation privilege; plaintiffs appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the attorney litigation privilege cover prelitigation communications and conduct? | Privilege does not extend to prelitigation conduct; March 19 meeting was pre‑suit. | Privilege covers communications and conduct before, during, and after litigation if pertinent to proposed litigation. | Privilege covers prelitigation conduct pertinent to proposed litigation. |
| Does the privilege protect conduct as well as communications? | Privilege limits to communications; does not shield alleged intrusive conduct (searching purse, obtaining files). | Privilege extends to conduct performed in furtherance of legal representation. | Privilege protects statements and conduct when related to litigation and in furtherance of representation. |
| Did McDermott’s specific actions fall within the privilege (pertinency requirement)? | McDermott obtained and used private information without permission and outside ordinary legal practice; thus not protected. | McDermott’s gathering/using information and calling the meeting were in furtherance of Anne‑Marie’s potential litigation and settlement efforts. | The court resolved any doubt in favor of pertinency and found the conduct tied to proposed litigation; privilege applies. |
| Should privilege yield because plaintiffs are left without recourse? | Applying privilege leaves plaintiffs uncompensated and without a remedy against McDermott. | Privilege applies even if it results in uncompensated harm; redress, if any, lies in the underlying litigation. | Lack of an alternative remedy does not defeat the absolute privilege; dismissal affirmed. |
Key Cases Cited
- Popp v. O’Neill, 313 Ill. App. 3d 638 (privilege affords complete immunity and applies to prelitigation communications)
- Atkinson v. Affronti, 369 Ill. App. 3d 828 (privilege is absolute; pertinency requirement applied liberally)
- Edelman, Combs & Latturner v. Hinshaw & Culbertson, 338 Ill. App. 3d 156 (privilege promotes free flow of information to courts and protects out‑of‑court communications)
- Golden v. Mullen, 295 Ill. App. 3d 865 (defines pertinency requirement for communications related to litigation)
- Thompson v. Frank, 313 Ill. App. 3d 661 (privilege extended beyond defamation context)