In Re Grand Jury January 246

PRESIDING JUSTICE GREIMAN,

dissenting:

I must respectfully dissent from the majority decision because I believe that the deposition testimony at issue cannot and, indeed, should not be read so broadly as to waive the attorney-client privilege which protects other aspects of conversations and other conversations.

The supreme court has recently reminded us of the policy behind the privilege. "The raison d’etre of the privilege is to secure for the client the ability to confide freely and fully in his or her attorney, without fear that confidential information will be disseminated to others.” People v. Knuckles (1995), 165 Ill. 2d 125, 130.

The voluntary disclosure of confidential information does not waive the attorney-client privilege as to all conversations or as to the entire discussion which may have occurred (Goldman, Sachs & Co. v. Blondis (N.D. Ill. 1976), 412 F. Supp. 286, 288), and a partial waiver of the privilege as to certain communications does not constitute a blanket waiver as to undisclosed conversations (In re Estate of Hoover (1992), 226 Ill. App. 3d 422, 431, 589 N.E.2d 899). The parameters of a client’s waiver "extend! ] no further than the subject matter concerning which testimony had been given by the client.” (People v. Gerold (1914), 265 Ill. 448, 481, 107 N.E. 165.) Moreover, to determine the extent of disclosure where a partial disclosure has been made, reference must be made to the objectives of the attorney-client privilege and the qualification (Blondis, 412 F. Supp. at 288) and a careful examination must be made of the words allegedly waiving the privilege.

Of the several cases cited by the majority, none is factually parallel to the case at bar. While the general principles ascribed to the cited authority are valid, they are not applicable to the facts which we consider here. For example, although the majority relies heavily upon In re Marriage of Decker (1992), 153 Ill. 2d 298, 312, 606 N.E.2d 1094, that case was a crime-fraud case rather than a waiver (a kidnapping parent told a lawyer that she was leaving the jurisdiction with the child). Similarly, Fidelity & Casualty Co. v. Mobay Chemical Corp. (1992), 252 Ill. App. 3d 992, 625 N.E.2d 151, dealt with a full waiver of the conversation with the lawyer where the defendant used the entire conversation with counsel in an effort to secure a bargaining chip in the course of a Federal prosecution.

Examples of such inapplicability are: (1) the defendant’s testimony supporting a claim of incompetency of counsel was deemed a waiver of the privilege as to matters discussed between attorney and client in fashioning a defense strategy (People v. O’Banner (1991), 215 Ill. App. 3d 778, 575 N.E.2d 1261); (2) the plaintiff’s statement that she told her attorney that she had no independent recollection of the accident opened the door for the attorney to testify as to this impeaching matter (Newton v. Meissner (1979), 76 Ill. App. 3d 479, 394 N.E.2d 1241); (3) a statement to an insurance investigator employed by the lawyer and who the client believes represents the lawyer is privileged (Rapps v. Keldermans (1993), 257 Ill. App. 3d 205, 628 N.E.2d 818); and (4) the entire conversation held in an automobile on the way to court was waived where the client testified to all of the conversation before the grand jury after a grant of immunity (People v. Adam (1972), 51 Ill. 2d 46, 280 N.E.2d 205). None of these cases involve a part of a conversation or a different conversation from that which is the subject of the inquiry. These cases relate to complete disclosure of the subject conversations.

On the other hand, one of the cited cases appears to support the contemnors’ position. In In re Estate of Hoover (1992), 226 Ill. App. 3d 422, 431, 589 N.E.2d 899, the court held that the voluntary disclosure of information by the client does not effectively waive the attorney-client privilege as to all other nondisclosed communications which may have taken place.

Upon close examination of the December 1994 deposition, it seems rather clear that it refers to the initial interview Ms. Heard had with contemnors. However, the question put to the attorneys concerns a specific telephone conversation subsequent to their initial engagement.

We have already stated that waiver of one conversation does not waive all other conversations between client and attorney. Even Ms. Heard’s words do not allow the conclusion that a Reynolds offer was discussed. She mentions discussion of what she might be entitled to "for all of the things he did to me” not "what I might do for him.” Aside from the mention of books and movies, about the best that can be made of her remarks is that she believed that she had some sort of claim against Reynolds.

In light of these principles, I do not believe that the phrase "financial benefits” as used in Ms. Heard’s deposition can be read or construed to have broken the privilege barrier beyond the context of books or movies. The sanctity and shelter of the attorney-client privilege must not be diluted by an over expansive interpretation of partial revelations and is better protected by a narrow view of disclosure.