Johnson v. Frontier Ford, Inc.

• Decision Date: 06 February 1979
• Docket Number: No. 78-265,78-265
• Citation: 68 Ill.App.3d 315,24 Ill.Dec. 908,386 N.E.2d 112
• Parties: , 24 Ill.Dec. 908 Robert F. JOHNSON, Plaintiff-Appellant, v. FRONTIER FORD, INC., a Delaware Corporation, et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 112

386 N.E.2d 112

68 Ill.App.3d 315, 24 Ill.Dec. 908

Robert F. JOHNSON, Plaintiff-Appellant, v. FRONTIER FORD, INC., a Delaware Corporation, et al Defendants-Appellees.

No. 78-265.

Appellate Court of Illinois, Second District.

Feb. 6, 1979.

Graves, Greenwald, Maier & Miner, Edward L. Miner, Rockford, for plaintiff-appellant.

Brassfield, Cowan & Howard, Eugene E. Brassfield, Rockford, for defendants-appellees.

NASH, Justice:

Plaintiff, Robert F. Johnson, and his attorney, John P. Graves, Jr., bring this interlocutory appeal from an order directing delivery to the trial court for its in camera review certain documents described as correspondence between Allstate Insurance Company and Attorney Graves and from the finding of contempt entered against Graves upon his failure to comply with that order.

The underlying case from which this appeal arises is a products liability action brought by plaintiff, represented by Attorney Graves, against Frontier Ford, Inc., and other defendants. On November 7, 1977, during the course of discovery, defendants caused a subpoena duces tecum to be served upon Allstate directing it to produce all of its records and investigative file, including statements, photographs, repair bills and other documents, relating to an automobile accident involving plaintiff which occurred on October 18, 1975, and which is the subject of this action. While Allstate is not a party to this case, it was the insurer of plaintiff's automobile and by reason of certain payments made to him became subrogated to his right to recover for some of the items of damage to the automobile sought by plaintiff against defendants.

Allstate did not directly respond to the subpoena but, instead, turned its entire file over to plaintiff's attorney, John P. Graves, Jr. On December 19, 1977, in response to the subpoena Graves, on behalf of Allstate, met with defendants' counsel and produced for examination and copying the Allstate file, the contents of which he stated were represented to him by Allstate as being its entire file on the case. However, Attorney Graves withheld certain documents contained in the file which he described as correspondence between Allstate and his law firm. Defendants thereafter filed a motion requesting an order requiring plaintiff to produce the documents withheld by Graves, specifically demanding production of all correspondence between Allstate and Graves or his firm, and "any other documentation not heretofore produced pursuant to said subpoena duces tecum."

At a hearing of this motion on February 23, 1978, Graves stated to the court that he represented both Allstate and plaintiff Johnson and that the investigative file was given to him by Allstate as its attorney. He asserted the documents he had refused to produce for defendants from the Allstate file were privileged communications not subject to discovery. Counsel for defendants argued, however, that based upon his examination of the material which had been produced without objection by Graves, that other relevant documents may also not have been disclosed. Defendants' counsel requested that the trial court conduct an in camera examination of the Allstate file for it to determine whether the documents withheld by Graves were, in fact, privileged and not subject to disclosure. Graves was given an opportunity to prepare and file his affidavit in opposition to defendants' motion to produce the documents; he there stated that he was a duly licensed attorney of the State of Illinois and had responded on behalf of Allstate to the subpoena duces tecum served on it by defendants and that the documents he had refused to produce were correspondence between himself or his firm and Allstate exchanged at a time when an attorney-client relationship existed between them and were, therefore, privileged communications not subject to production. While the affidavit did not disclose when Attorney Graves had been retained by Allstate, at a further hearing of this matter held March 9, 1978, he stated he was retained on March 23, 1976, prior to service of the subpoena on Allstate by defendant.

The trial court thereupon directed production of the disputed documents for an in camera examination by the court for it to determine whether or not they were subject to disclosure. Attorney Graves declined to do so and, at his suggestion, the trial court found him to be in contempt and this appeal followed.

Plaintiffs contend that the documents ordered to be produced for inspection by the court are subject to the attorney-client privilege referred to in Supreme Court Rule 201(b)(2) which provides, in part, that "(a)ll matters that are privileged against disclosure on the trial, including privileged communications between a party or his agent and the attorney for the party, are privileged against disclosure through any discovery procedure." ¹ (Ill.Rev.Stat.1977, ch. 110A, par. 201(b)(2).) They argue that by virtue of Attorney Graves' representations to the trial court that the undisclosed documents contained in the Allstate file were privileged communications between attorney and client the issue has been determined and may not be reviewed by a court.

While the first sentence of Supreme Court Rule 201(b)(2) defines the relationship between the discovery rules and the attorney-client privilege, it does not define the elements of the privilege itself. Nor is there a statutory declaration in Illinois describing what communications between attorney and client are privileged. (People ex rel. Hopf v. Barger (1975), 30 Ill.App.3d 525, 535, 332 N.E.2d 649, 658; but Cf. Ill.Rev.Stat.1977, ch. 51, par. 5 (husband-wife), par. 5.1 (physician-patient), par. 5.2 (psychiatrist-patient), par. 48.1 (communications to clergymen) and par. 111 (reporters' privilege).) That salutary attribute of the relationship between an attorney and his client, however, is a long established rule of the common law. (81 Am.Jur.2d Witnesses § 172 n.12 (1976).) The purpose and requirements of the privilege were described in People v. Adam (1972), 51 Ill.2d 46, 48, 280 N.E.2d 205, 207, Cert. denied, 409 U.S. 948, 93 S.Ct. 289, 34 L.Ed.2d 218:

"The attorney-client privilege exists in order that one who is, or seeks to become a client, may consult freely with counsel without fear of compelled disclosure of information communicated by him to the attorney whom he has employed, or seeks to employ. The essentials of its creation and continued existence have been defined as follows: '(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.' 8 Wigmore, Evidence, sec. 2292 (McNaughton Rev. 1961)." See Taylor v. Taylor (1977), 45 Ill.App.3d[68 Ill.App.3d 319] 352, 3 Ill.Dec. 961, 359 N.E.2d 820; People v. Doe (1977), 55 Ill.App.3d 811, 13 Ill.Dec. 617, 371 N.E.2d 334.

In re Estate of Busse (1947), 332 Ill.App. 258, 266-67, 75 N.E.2d 36, 39-40 summarizes the four elements which must be established in order for the privilege to attach: (1) that an attorney-client relationship exists; (2) that the communication to the attorney be confidential; (3) that the communication relate to the matter for which the attorney was retained; and (4) that the communication be made during the course of the attorney-client relationship. In addition to these requirements, where a corporate client is involved as in this case, the "control group" theory also requires that the communication be with someone associated with the corporation who is in a position to control or to take a substantial part in a decision about an action which the corporation might take upon the advice of the attorney. (Golminas v. Fred Teitelbaum Construction Co. (1969), 112 Ill.App.2d 445, 448, 251 N.E.2d 314, 317; Shere v....