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Illinois Bar Journal


Some 30 years ago, the Illinois Supreme Court, in In re Himmel, recognized that no discovery/evidentiary privilege would attach to nonconfidential attorney-client communications. Some communications would be nonconfidential if made in the presence of those who were not "agents" of either the attorney or client. As to the client in Himmel, neither the client's mother nor her fiancé were deemed the client's agents so that there was no privilege. But in so ruling, the court failed to clearly describe in detail the substantive circumstances of client agency or the procedures necessary for establishing such agency. And since then, the Illinois Supreme Court and lower Illinois courts have provided little further guidance.

The December 2018 Colorado Supreme Court decision in Fox v. Alfini demonstrates the need for clearer guidance in Illinois. There, the court surveyed varying possible approaches to both the substantive and the procedural elements underlying privileged attorney-client communications. That decision is reviewed below. Together with some thoughts on clarifying Illinois law, the Colorado ruling demonstrates several pitfalls for attorneys who assume that a privilege follows whenever client communications are preceded simply by promises to maintain confidences.

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College of Law

Suggested Citation

Jeffrey A. Parness, Confidentiality and Client Communications in Illinois, 107 Ill. Bar J., Nov. 2019, at 30.

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