Taylor v. Taylor

• Decision Date: 13 January 1977
• Docket Number: No. 76--70,76--70
• Citation: 3 Ill.Dec. 961,359 N.E.2d 820,45 Ill.App.3d 352
• Parties: , 3 Ill.Dec. 961 Judith E. TAYLOR, Plaintiff, v. Eldon D. TAYLOR, Defendant, John P. Geismann, Appellant.
• Court: United States Appellate Court of Illinois

Page 820

359 N.E.2d 820

45 Ill.App.3d 352, 3 Ill.Dec. 961

Judith E. TAYLOR, Plaintiff, v. Eldon D. TAYLOR, Defendant John P. Geismann, Appellant.

No. 76--70.

Appellate Court of Illinois, Fifth District.

Jan. 13, 1977.

Donald R. Johannes, Highland, for appellant.

James J. Massa, Collinsville, for plaintiff.

CARTER, Justice:

Appellant, John P. Geismann, attorney at law, represented one Judith E. Taylor in a divorce action. The divorce was granted and Mrs. Taylor was given custody of the sole minor child. Appellant's employment by Mrs. Taylor terminated when the court entered its final order dated August 7, 1975.

On September 26, 1975 Mr. Taylor, the former husband, filed a Petition for Rule to Show Cause and Petition to Modify Decree and notice of these proceedings was sent to appellant. Appellant was not retained by Mrs. Taylor to represent her on this matter, and no service was made on Mrs. Taylor. Neither Mrs. Taylor nor anyone on her behalf appeared before the court with respect to this matter.

On October 17, 1975, Judge Clayton Williams entered an order compelling appellant to reveal the address of Mrs. Taylor to the court for the purpose of obtaining personal service on her.

Appellant challenged the order arguing that the address of Mrs. Taylor had been given to him with the express understanding he would reveal it to no one, and that compliance with the court order would violate Disciplinary Rule 4--101 of the Code of Professional Responsibility adopted by the Illinois State Bar Association. Furthermore, appellant was well aware that Mr. Taylor had a criminal record which included convictions for armed robbery, assault and other dangerous crimes, and that Mrs. Taylor's reason for requiring appellant not to divulge her address was her genuine fear for the safety of herself and her child.

A hearing was held on December 16, 1975 wherein appellant's motions to rescind the order were denied, and appellant was ordered to reveal Mrs. Taylor's address to the court by December 22, 1975 or be held in contempt of court. Appellant refused to comply. The court has stayed the order of December 16, 1975 pending the outcome of this appeal.

The sole issue presented for consideration on this appeal is whether an attorney may be held in contempt of court for refusing to divulge the address of a former client, communicated to the attorney in the strictest confidence.

The purpose of the attorney-client privilege is to promote freedom of communication among attorneys and their clients by removing the fear of compelled disclosure by the lawyers of confidential information. Matter of Grand Jury Subpoenas Served Upon Field, 408 F.Supp. 1169 (S.D.N.Y. 1976), 8 J. Wigmore, Evidence Sec. 2291 (McNaughton rev. 1961). The client must be assured that information conveyed in confidence will not be ordinarily disclosed.

However, the attorney-client privilege is not absolute. Arrayed against this consideration is the public interest in obtaining disclosure of every man's evidence. In re Stolar, 397 F.Supp. 520, 524 (S.D.N.Y.1975); In re Horowitz, 482 F.2d 72, 81 (2d Cir. 1973). When these two principles clash a balance must be struck and an appropriate resolution will not be forthcoming by a wooden application of some general formula. The answer must lie, instead, in an analysis of the particular circumstances giving rise to the problem, ever mindful of the policy considerations which furnish a basis for the two principles. This balancing approach has been adopted in Illinois as reflected in People v. Barger, 30 Ill.App.3d 525, 332 N.E.2d 649, 658:

'The relationship between attorney and client does, of course, invoke policies based on the public interest even though there is no statutory declaration that communications between attorney and client are 'privileged'. The statement of these policies is most often found in cases which discuss the rights to discover information under Supreme Court Discovery Rules, and they suggest that the 'privilege' is to be strictly construed as an exception to the general duty to disclose. * * * The rules adopted by the organized Bar are another recognition of the lawyer-client relationship from the viewpoint of the lawyer's ethical and legal obligation. The basic question is one of reconciling the policy favoring disclosure of the information with the lawyer's duty to provide effective and ethical representation of a client * * *.'

The Code of Professional Responsibility has been adopted by the Illinois Bar Association. Of special importance in this case is Disciplinary Rule 4--101 which provides:

'(A) 'Confidence' refers to information protected by the attorney-client privilege under applicable law, and 'secret' refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.

(B) Except when permitted under DR 4--101(C), a lawyer shall not knowingly, during or after termination of the professional relationship to his client:

(1) Reveal a confidence or secret of his client.

(2) Use a confidence or secret of his client to the disadvantage of the client.

(3) Use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure.

(C) A lawyer may reveal:

(1) Confidence or secrets with the consent of the client or clients affected, but only after a full disclosure to them.

(2) Confidences or secrets when required by law.

(3) The intention of his client to commit a crime and the information necessary to prevent that crime.

(4) Confidences or secrets necessary to establish or collect his fee or to defend himself or his employees or associates against accusation of wrongful conduct.

(D) A lawyer shall exercise reasonable care to prevent his employees, associates, and others whose services are utilized by him from disclosing or using confidences or secrets of a client, except that a lawyer may reveal the information allowed by DR 4--101(C) through an employee.'

A number of cases recognize that if a client's address is conveyed to his attorney in a way that satisfies the requirement of a confidential communication it will be protected from disclosure by the attorney-client privilege. In re Grand Jury Subpoenas Served Upon Field, 408 F.Supp.1169 (S.D.N.Y.1976); In re Stolar, 397 F.Supp. 520 (S.D.N.Y.1975); Annot., 16 A.L.R.3d 1047, 1062. As a significant exception to this rule it is generally recognized that, to insure the smooth operation of legal machinery during a Pending action in which he represents a party whose to disclose his the attorney is obliged to disclose his client's place of residence. Annot., 16 A.L.R.3d 1047, 1051; 81 Am.Jur.2d 246 Sec. 214.

An examination of the facts in the present case leads one to the conclusion that the address sought falls within the privilege afforded by the general rule, rather than subject to the exception. First of all, in order to trigger the exception the attorney must be representing a party in a pending action. As has been stated above, appellant's employment by Mrs. Taylor terminated when the court entered its final order on August 7, 1975. Furthermore, the original action was no longer pending so far as Geismann was concerned when Mr. Taylor filed his petitions to modify the decree of the court. The petition to modify must be distinguished from an appeal. An appeal is not a new suit in the appellate court, but a continuation of the suit in the court below; it is a proceeding in the original cause and is but a step toward the final adjudication of the original cause. De Rodulfa v. United States, (1972) 149 U.S.App.D.C. 154, 461 F.2d 1240, 1245. In this case the petition is to seek relief from the decree other than by appeal. It can be reasonably stated that the petition of Mr. Taylor can be considered a new action. Although that new action deals with a prior proceeding, it is 'not a continuation thereof,' hence, the prior proceeding should...