Doe v. Williams McCarthy, LLP

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Appellate Court Date: 2018.02.20
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Doe v. Williams McCarthy, LLP, 2017 IL App (2d) 160860

Appellate Court JANE A. DOE, Plaintiff-Appellant, v. WILLIAMS McCARTHY,
Caption LLP; CLAYTON LINDSEY; and TREVA SARVER, Individually
and as Trustee of the Ruby Louise Lance Living Trust Dated
September 2, 2009, and as Successor Trustee of the Ruby Louise
Lance Revocable Living Trust Dated March 15, 2002,
Defendants-Appellees.

District & No. Second District
Docket No. 2-16-0860

Filed December 8, 2017

Decision Under Appeal from the Circuit Court of Lee County, No. 15-L-4; the Hon.
Review Daniel A. Fish, Judge, presiding.

Judgment Affirmed in part and reversed in part; cause remanded.

Counsel on Susan M. Brazas Goldberg, of Rockford, for appellant.
Appeal
Law Offices of Edward J. Kozel, of Chicago (David A. Sorensen, of
counsel), for appellees.
 Panel PRESIDING JUSTICE HUDSON delivered the judgment of the
court, with opinion.
Justices Hutchinson and Spence concurred in the judgment and
opinion.

OPINION

¶1 I. INTRODUCTION
¶2 Plaintiff, Jane A. Doe, appeals an order of the circuit court of Lee County dismissing her
complaint against defendants, Williams McCarthy, LLP (Williams McCarthy), Clayton
Lindsey, and Treva Sarver (individually and in her capacities as trustee of the Ruby Louise
Lance Living Trust dated September 2, 2009 and successor trustee of the Ruby Louise Lance
Revocable Living Trust dated March 15, 2002), in accordance with section 2-619 of the Code
of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2016)). For the reasons that follow, we
affirm in part, reverse in part, and remand.

¶3 II. BACKGROUND
¶4 Plaintiff’s second amended complaint alleged as follows. Plaintiff previously sued Sarver
regarding “the validity of the Trust and Estate of a Decedent” (the trust litigation). Sarver
was represented in the trust litigation by attorney Lindsey and the law firm that employed
him, Williams McCarthy. Plaintiff alleged that defendants violated an order pursuant to the
Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. § 1320d et seq.
(2012)) (HIPAA order) and the Illinois Mental Health and Developmental Disabilities
Confidentiality Act (Act) (740 ILCS 110/1 et seq. (West 2016)) by disclosing to persons,
including the public, without plaintiff’s consent and without following the procedures
specified in the Act, facts pertinent to plaintiff’s mental-health status and treatment.
¶5 Plaintiff alleged that, in connection with the trust litigation, defendants filed 11
subpoenas containing protected information. Plaintiff continued, “the [Lee County circuit
court] allowed the public to access and view court documents in the [trust litigation],
including the documents contained within Plaintiff’s court file such as the above-mentioned
eleven subpoenas, all of which identified Plaintiff’s medical providers and mental health
providers, via in-person viewing and via on-line case information searching, until the court
entered an Order, on [July 26, 2013], sealing the file from public access.” According to
plaintiff, this violated the HIPAA order, entered on March 13, 2012, which limited access to
such records to “attorneys of record and the staff of the attorneys of record.” The complaint
went on to allege that defendants knew that certain individuals were “therapists,” that
Sinnissippi Centers, Inc., in Dixon and Rochelle were mental-health treatment facilities, and
that the disclosure of the records of such individuals and facilities violated the Act to the
extent that the procedures set forth in the Act were not followed.
¶6 The complaint further alleged that Williams McCarthy and Lindsey conveyed such
information to Sarver, in violation of the HIPAA order. Further, contrary to the provisions of
the Act, defendants did not notify plaintiff’s treatment providers that they were seeking
access to plaintiff’s mental-health records. Moreover, defendants failed to make the threshold

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 showing that plaintiff had placed her mental health at issue in the trust litigation. Also, prior
to any disclosure, the trial court was required to make an in camera review of the records.
The subpoenas were not accompanied by a judge’s written order authorizing the disclosure.
¶7 The complaint alleged that Williams McCarthy and Lindsey contacted plaintiff’s
treatment providers and threatened that they would be held in contempt if they did not release
plaintiff’s records. During a deposition, Williams McCarthy and Lindsey attempted to
question a psychiatrist about plaintiff’s mental-health status and treatment, in violation of the
HIPAA order and the Act.
¶8 The complaint further alleged that Sarver violated the HIPAA order by “viewing and
copying such records of Plaintiff[ ] and by obtaining and viewing a listing of Plaintiff’s
medical providers and mental health providers which Defendants Williams McCarthy and
Lindsey had obtained from Attorney Paul Whitcombe, who was then Plaintiff’s counsel in
the [trust litigation].” Plaintiff stated that, during a deposition, Sarver “made an outburst and
yelled, within the hearing of and in the presence of the parties, their counsel, the court
reporter, and the deponent, that the Plaintiff was mentally ill.” In May 2013, plaintiff
received three envelopes in the mail, with no return addresses, containing copies of various
medical records, mental-health records, and subpoenas. Finally, during the pendency of the
trust litigation, defendants made statements, in open court and in the presence of the public,
concerning plaintiff’s mental-health status, diagnoses, and treatment.
¶9 The complaint set forth five counts under which plaintiff sought relief, incorporating by
reference the material set forth above. The first count set forth a claim under the Act as to all
defendants. It alleged that defendants violated the Act by seeking and obtaining plaintiff’s
mental-health records even though she did not place her mental health at issue, seeking and
obtaining such records without ensuring that the trial court had conducted an in camera
review of them, seeking and obtaining such records without ensuring that the trial court had
made the requisite findings under the Act after conducting an in camera review, seeking and
obtaining such records without written notice to plaintiff and her mental-health treatment
providers, seeking a court order requiring plaintiff to sign a written consent to the disclosure
of such records, filing a motion to dismiss, “seeking to punish [p]laintiff for exercising her
statutory privilege to refuse to disclose” such records, and issuing subpoenas that did not
comply with the Act.
¶ 10 Count II alleged legal malpractice on the part of Williams McCarthy and Lindsey. It first
alleged an attorney-client relationship between all defendants. It then claimed that plaintiff
was a third-party beneficiary of the attorney-client relationship. Plaintiff based this claim on
the fact that Lindsey drafted the HIPAA order purportedly for plaintiff’s benefit. Thus,
plaintiff reasons, Williams McCarthy and Lindsey owed her a duty of reasonable care. The
actions taken by Williams McCarthy and Lindsey that led to the disclosure of certain
mental-health records breached this duty.
¶ 11 Plaintiff’s third count alleged negligent supervision on the part of Williams McCarthy.
This count sought to hold Williams McCarthy liable for failing to prevent Lindsey from
violating the HIPAA order and the Act. Plaintiff argued that Lindsey’s repeated violations
indicated his “particular unfitness for the position of attorney.”
¶ 12 Count IV, pertaining to all defendants, alleged an invasion of plaintiff’s privacy by the
“public disclosure of private facts.” It alleged as follows:

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 “The actions and inactions of the Defendants constituted a public disclosure of
private facts as to the Plaintiff, in that public disclosure was made by Defendants
placing Plaintiff’s confidential medical health and mental health information within
the court file, accessible to the public; and by Defendants creating and disseminating
written and oral statements to other persons, including but not limited to statements
made to Defendant SARVER, Dr. Anthony D’Souza, Karyn Martin-Boht, Dr.
Thomas Dennison, and Attorney Bob Thompson, and statements made in open court,
in courtrooms where members of the public, and attorneys, were gathered and had
access to oral statements made by Defendants.”
According to plaintiff, this constituted an invasion of privacy, a violation of the HIPAA
order, and a violation of the Act.
¶ 13 The fifth count alleged intentional infliction of emotional distress. This count alleged that
defendants’ violations of the Act and the HIPAA order exhibited “wanton and utter
indifference” to plaintiff’s rights and constituted “extreme and outrageous conduct.” Further,
defendants knew or should have known that their actions would cause plaintiff emotional
distress, which was also their intent.
¶ 14 Defendants moved to dismiss pursuant to section 2-619 of the Code. The trial court
granted the motion. It first noted that the instant litigation arose out of the previous trust
litigation, which was in front of a different trial judge, Judge Ackert. The trust litigation
concerned claims that the settlor, Ruby Lance, lacked the capacity to execute a trust and that
Sarver exerted undue influence over Lance, which caused plaintiff to be excluded from the
trust. During that litigation, plaintiff alleged, defendants subpoenaed, obtained, and made part
of the court file certain of plaintiff’s medical and mental-health records. The issues presented
in the motion to dismiss, the trial court noted, were whether counts I, IV, and V were barred
by the absolute-litigation privilege and whether, with respect to counts II and III, any duty
existed and extended to plaintiff. The trial court found that Williams McCarthy and Lindsey
owed no duty to plaintiff, and it dismissed counts II and III on that basis. It expressly found
that the HIPAA order was not drafted with the primary intent to benefit plaintiff; rather,
Williams McCarthy and Lindsey simply intended to comply with the law.
¶ 15 As for the remaining counts, the trial court found that they were barred by the
absolute-litigation privilege. It noted that the privilege applied to claims of intentional
infliction of emotional distress and invasion of privacy. Although count I was based on the
Act, it was in the nature of an invasion-of-privacy claim, so the privilege applied to it as well.
The trial court further noted that plaintiff’s mental-health records were relevant to the trust
litigation. It observed that one of the issues was whether the reason plaintiff was left out of
Lance’s “will or trust” was her estrangement from Lance. Plaintiff’s need for counseling was
purportedly due, in part, to this estrangement, and the mental-health records would
substantiate this. There was also an issue regarding whether, in assessing Lance’s mental
capacity, a doctor attributed some of plaintiff’s history to Lance. Thus, plaintiff’s records
were relevant to cross-examining the doctor and assessing his opinion. Finally, the trial court
noted that conduct in a previous case typically cannot form the basis of a cause of action in a
new case.
¶ 16 Subsequently, plaintiff filed a motion to reconsider. The trial court denied the motion.
This appeal followed.

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¶ 17 III. ANALYSIS
¶ 18 On appeal, plaintiff limits her arguments to counts I, IV, and V, the counts dismissed
pursuant to the absolute-litigation privilege. She makes no argument here that Williams
McCarthy or Lindsey owed her a duty (thus, counts II and III will not be addressed any
further). As this appeal comes to us following the grant of a motion to dismiss pursuant to
section 2-619 of the Code, review is de novo. Khan v. Deutsche Bank AG, 2012 IL 112219,
¶ 18. Moreover, a motion to dismiss under section 2-619 “admits the legal sufficiency of the
complaint, admits all well-pleaded facts and all reasonable inferences therefrom, and asserts
[that] an affirmative matter outside the complaint bars or defeats the cause of action.”
Reynolds v. Jimmy John’s Enterprises, LLC, 2013 IL App (4th) 120139, ¶ 31. Here, the
affirmative matter relied on by defendants is the absolute-litigation privilege.
¶ 19 The absolute-litigation privilege immunizes certain statements and conduct by attorneys
in the course of litigation. See, e.g., Medow v. Flavin, 336 Ill. App. 3d 20, 32 (2002). Also,
“[a] private litigant enjoys the same privilege concerning a proceeding to which he is a
party.” Johnson v. Johnson & Bell, Ltd., 2014 IL App (1st) 122677, ¶ 15. The privilege is
based on section 586 of the Restatement (Second) of Torts, which provides as follows:
“An attorney at law is absolutely privileged to publish defamatory matter concerning
another in communications preliminary to a proposed judicial proceeding, or in the
institution of, or during the course and as part of, a judicial proceeding in which he
participates as counsel, if it has some relation to the proceeding.” Restatement
(Second) of Torts § 586 (1977).
The purpose of the privilege is to allow attorneys “ ‘the utmost freedom in their efforts to
secure justice for their clients.’ ” Kurczaba v. Pollock, 318 Ill. App. 3d 686, 701-02 (2000)
(quoting Restatement (Second) of Torts § 586 cmt. a at 247 (1977)). It further serves to
facilitate the free flow of information between attorneys, clients, and the court system.
O’Callaghan v. Satherlie, 2015 IL App (1st) 142152, ¶ 24. Its application “is limited,
however, to instances where the administration of justice and public service require
immunity.” Id. As an absolute privilege, the class of communications to which it applies is
narrow. Kurczaba, 318 Ill. App. 3d at 701. For the privilege to apply, the communication
must bear some relationship to the proposed or “pending litigation” and it must be in
furtherance of that litigation. O’Callaghan, 2015 IL App (1st) 142152, ¶ 25. However, this
latter requirement is not strictly applied, and all doubts are to be resolved in favor of finding
the communication pertinent to the litigation. Id. Indeed, when the privilege applies, “no
liability will attach even at the expense of uncompensated harm to the plaintiff.” Id.
¶ 20 We will first examine counts IV and V—alleging common-law invasion of privacy and
intentional infliction of emotional distress, respectively. In Johnson, 2014 IL App (1st)
122677, ¶¶ 14-18, the court found the privilege applicable to claims of “invasion of privacy,
negligence, negligent infliction of emotional distress, and breach of oral and written
contracts.” See also O’Callaghan, 2015 IL App (1st) 142152, ¶ 26 (holding privilege applies
to action alleging intentional infliction of emotional distress). Hence, we have little difficulty
concluding that the trial court correctly determined that the privilege applied to bar counts IV
and V. These counts were based on acts done in the course of and in furtherance of the trust
litigation. Plaintiff complained that defendants placed material in the court file and made
statements in open court. Counts IV and V relied—generally—on the same acts. Seeking
information from witnesses, issuing subpoenas, and seeking to obtain and enforce discovery

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 are intimately related to litigation. In short, the acts of which plaintiff complained were
clearly pertinent to the trust litigation, so the privilege plainly applies. Recasting the same
acts as different torts does not avoid this bar. See Johnson, 2014 IL App (1st) 122677,
¶¶ 17-18.
¶ 21 Plaintiff makes several arguments as to why the trial court erred in holding that the
absolute-litigation privilege barred her claims. She sets forth three circumstances under
which, she states, the privilege does not apply. The first is where the communication does not
further some interest of social importance. See Edelman, Combs & Latturner v. Hinshaw &
Culbertson, 338 Ill. App. 3d 156, 164 (2003). We agree; however, we note that representing
a client’s interests is of social importance. Id. at 167. As defendants’ actions were in
furtherance of Sarver’s interests in the trust litigation, this circumstance does not apply here.
Second, plaintiff states that, where a communication was made by an attorney to a person
other than a client, the privilege does not apply. She cites Kurczaba, 318 Ill. App. 3d at
704-05, but that case actually holds, “From the above cases, it is evident that Illinois clearly
limits the attorney litigation privilege and has refused to extend it to third-party
communications unrelated to a lawsuit.” (Emphasis added.) Id. at 705. Plaintiff omits the
criterion that the communication be unrelated to the lawsuit, which is not the case here.
Hence, Kurczaba is distinguishable on this basis. Third, she contends that, where there are no
safeguards against abuse, like the ability to discipline an attorney or strike sensitive material
from the record, the privilege does not apply. See Stein v. Krislov, 2013 IL App (1st) 113806,
¶ 35. Here, defendants’ actions occurred in a judicial proceeding, so the trial court could have
imposed sanctions. Further, the trial court did seal the records at issue. As such, this
circumstance is not present here either.
¶ 22 Plaintiff next contends, quoting Thompson v. Frank, 313 Ill. App. 3d 661, 664 (2000),
that the privilege does not apply to “ ‘an attorney’s out-of-court communications to’ persons
other than the attorney’s own client and opposing counsel.” Thompson does, in fact, state, “In
Illinois, the absolute privilege concerning communications related to a judicial proceeding
has been extended to out-of-court communications between opposing counsel, between
attorney and client related to pending litigation, and between attorneys representing different
parties suing the same entities,” but “Illinois courts have not extended the privilege to cover
an attorney’s out-of-court communications to other persons.” Id. Plaintiff complains that
information protected by the Act was disseminated to her mental-health treatment providers,
unidentified persons present in the courtroom, unidentified members of the public, and
attorneys not of record, persons present during depositions, and unidentified persons who
(might have) viewed the court file.
¶ 23 In O’Callaghan, 2015 IL App (1st) 142152, ¶ 29, the court held that the privilege applied
to communications between an attorney and individuals remediating a condition (mold in a
condominium) that was the subject of the pending legal action. It explained, “[the
defendant-attorney’s] alleged directions to the individuals remedying the condominium were
not made to an outsider within the meaning of the privilege; rather, neither [the attorney] nor
the workers would have had reason to be in [the plaintiff’s] condominium but for the mold,
the subject of this litigation.” Id. In this case, almost all of the people upon whom plaintiff
bases her claim bore a relationship to the litigation, whether it be courtroom personnel,
participants in a deposition, or potential witnesses. To the extent that plaintiff seeks to rely on
unidentified members of the general public who might have viewed the court proceedings or

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 the court file (and who might not have had some relationship to the litigation), her allegations
are far too speculative to merit consideration. See Alpha School Bus Co. v. Wagner, 391 Ill.
App. 3d 722, 735 (2009).
¶ 24 Turning to count I, we perceive different concerns at issue. Plaintiff argues that the
absolute-litigation privilege has never been applied to bar a proceeding under the Act. She
further criticizes the trial court’s attempt to analogize an action under the Act to an
invasion-of-privacy claim. Defendants acknowledge that the privilege has not previously
been applied in this context. Unlike with the common-law counts, here we must consider
whether the privilege can thwart a legislative enactment. Indeed, the chief flaw with the trial
court’s analogy is that invasion of privacy is a common-law theory whereas an action based
on the Act is statutory.
¶ 25 The Act itself plainly creates a private right of action. Section 15 of the Act states, “Any
person aggrieved by a violation of this Act may sue for damages, an injunction, or other
appropriate relief.” 740 ILCS 110/15 (West 2016). Section 3(a) states that “[a]ll records and
communications shall be confidential and shall not be disclosed except as provided in this
Act.” 740 ILCS 110/3(a) (West 2016). Furthermore, in accordance with section 10, the Act
applies “in any civil, criminal, administrative, or legislative proceeding.” 740 ILCS 110/10
(West 2016). Thus, the plain language of various provisions of the Act indicates that the
legislature intended it to control all releases of the material it makes confidential in all types
of proceedings and that a safeguard against improper disclosure is a civil action. It has been
held that “the Act constitutes a ‘strong statement’ by the General Assembly about the
importance of keeping mental health records confidential. [Citation.]” Norskog v. Pfiel, 197
Ill. 2d 60, 71 (2001). Conversely, the absolute-litigation privilege applies to a “narrow class
of cases.” Bushell v. Caterpillar, Inc., 291 Ill. App. 3d 559, 561 (1997). Although defendants
make a number of policy-based arguments as to why the privilege should be applied
expansively, we view this issue more as one of legislative intent regarding the scope of the
Act.
¶ 26 Thus, the question remains as to whether the statutory provisions must give way to the
absolute-litigation privilege. We find sound guidance on this question in an analogous
context, as this question has already been addressed in the context of the common-law
privilege enjoyed by witnesses. In Renzi v. Morrison, 249 Ill. App. 3d 5, 6 (1993), the court
considered whether common-law witness immunity foreclosed a lawsuit under the Act where
a witness disclosed confidential material during a court proceeding. The Renzi court
concluded that it did not. Id. at 8. The court observed that the “legislature recognized that the
right to witness immunity must be balanced with the right to privileged communication
between doctor and patient.” Id. The legislature created a cause of action for “[a]ny person
aggrieved by a violation of [the] Act.” (Internal quotation marks omitted.) Id.; see also 740
ILCS 110/15 (West 2016). The court then noted that allowing the privilege to defeat such an
action would make such language a nullity. Renzi, 249 Ill. App. 3d at 8; see also Mandziara
v. Canulli, 299 Ill. App. 3d 593, 598 (1998) (approving of Renzi and noting that common law
“ ‘must give way’ ” to the statutory protections of the Act).
¶ 27 Renzi concerned common-law witness immunity while this case concerns the
absolute-litigation privilege. Nevertheless, we perceive no principled way to distinguish
Renzi and its progeny. Whatever can be said about the interplay between the Act and
common-law witness immunity can also be said in the instant context. Accordingly, we hold

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 that the absolute-litigation privilege provides no shield for a party charged with a violation of
the Act.

¶ 28 IV. CONCLUSION
¶ 29 In light of the foregoing, we reverse the trial court’s dismissal of count I of plaintiff’s
complaint, and we otherwise affirm. This cause is remanded for further proceedings
consistent with this opinion. Plaintiff raises additional issues regarding the trial court’s
application of the Act; however, as we read the trial court’s decision, it was based only on the
absolute-litigation privilege. We express no opinion on any issue beyond that.

¶ 30 Affirmed in part and reversed in part; cause remanded.

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