Amy G. Gore—Senior Attorney
The attorney-client privilege has traditionally limited the disclosure of properly qualified communications between an attorney and a client who is seeking legal advice. The limits of the privilege were tested in a recent Illinois decision in MacDonald v. Wagenmaker, 2024 IL App (1st) 230089, ¶ 1. There, HBC, an evangelical Christian megachurch terminated its senior pastor and retained attorneys to investigate claims of financial misappropriations. The church instructed the attorneys to post a letter outlining the attorneys’ findings on the church website which referenced financial misappropriations by the senior pastor. The pastor brought suit against the attorneys alleging, inter alia, defamation, false light invasion of privacy, and civil conspiracy. During discovery, the pastor sought to subpoena communications between the attorneys, the church, and their accountants to which an attorney-client privilege was asserted. The pastor replied that the crime-fraud exception of the attorney-client privilege destroyed the protection from discovery. The trial court, relying on a passage in Radiac Abrasives, Inc. v. Diamond Technology, Inc., 177 Ill. App. 3d 628, 638 (1988), in which the Illinois Supreme Court indicated that crime-fraud exception could extend to other torts, examined the communications in camera and ruled for the pastor, finding that the attorneys were aware that the publication of the letter may amount to tortious conduct. The trial court’s ruling was reversed by the appellate court.
The appellate court examined the purpose of the crime-fraud exception to the attorney-client privilege and properly concluded that its application is limited to those instances where the client’s intent in retaining an attorney’s services is to engage in criminal or fraudulent conduct. Further, the party seeking to apply the exception to the privilege is required to make a prima facie showing of the client’s intent. The requisite showing requires that “a logical link must exist between the privileged communication and the proposed crime or fraud.” MacDonald, 2024 IL App (1st) 230089, ¶ 30. Only after the requisite link is established by an evidentiary hearing may an in camera examination of the communications take place. Consequently, the trial court’s decision to conduct an in camera review of the communications was inappropriate. The pastor’s only support for applying the crime-fraud exception came from the allegations of his complaint. Further, based on the findings of the trial court as a result of the in camera exception, the trial court concluded that HBC was unaware that its statements could be actionable until after consultation with their attorneys. The attorneys’ gave advice in good faith. The fact that publication could be deemed actionable fails to satisfy the proof that the client sought the advice with the intent to defame.
The appellate court continued by reversing the trial court’s ruling that the crime-fraud exception was applicable to defamation claims. The appellate court noted that the trial court incorrectly extended the holding in Radiac Abrasives, Inc. Radiac and cases subsequently applying that holding have applied the crime-fraud exception to the attorney-client privilege only to conduct that amounted or was akin to fraud. The court refused to expand the crime-fraud exception to defamation claims since the result would ultimately deter clients from seeking good faith advice from attorneys in the future.
