Doe v. Williams McCarthy, LLP , 92 N.E.3d 607 ( 2017 )


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    2017 IL App (2d) 160860
    No. 2-16-0860
    Opinion filed December 8, 2017
    ______________________________________________________________________________
    IN THE
    APPELLATE COURT OF ILLINOIS
    SECOND DISTRICT
    ____________________________________________________________________________
    JANE A. DOE,                                 ) Appeal from the Circuit Court
    ) of Lee County.
    Plaintiff-Appellant,                  )
    )
    v.                                           ) No. 15-L-4
    )
    WILLIAMS McCARTHY, 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, ) Honorable
    ) Daniel A. Fish,
    Defendants-Appellees.                 ) Judge, Presiding.
    ____________________________________________________________________________
    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
    
    2017 IL App (2d) 160860
    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
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    2017 IL App (2d) 160860
    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 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
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    2017 IL App (2d) 160860
    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
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    2017 IL App (2d) 160860
    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:
    “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
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    2017 IL App (2d) 160860
    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.
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    2017 IL App (2d) 160860
    ¶ 16   Subsequently, plaintiff filed a motion to reconsider. The trial court denied the motion.
    This appeal followed.
    ¶ 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).
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    2017 IL App (2d) 160860
    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,
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    2017 IL App (2d) 160860
    issuing subpoenas, and seeking to obtain and enforce discovery 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.
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    2017 IL App (2d) 160860
    ¶ 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, 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 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).
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    2017 IL App (2d) 160860
    ¶ 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. Pfeil, 
    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.
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    2017 IL App (2d) 160860
    ¶ 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 “any person aggrieved by a violation of [the] Act.” 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 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
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    2017 IL App (2d) 160860
    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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Document Info

Docket Number: 2-16-0860

Citation Numbers: 2017 IL App (2d) 160860, 92 N.E.3d 607

Filed Date: 12/8/2017

Precedential Status: Non-Precedential

Modified Date: 1/12/2023