{ "id": 2577665, "name": "In re MARRIAGE OF REBECCA KAY DECKER, Petitioner-Appellee, and PAUL R. DECKER, Respondent (Kristen H. Fischer, Contemnor-Appellant)", "name_abbreviation": "In re Marriage of Decker", "decision_date": "1990-10-04", "docket_number": "No. 4\u201490\u20140488", "first_page": "566", "last_page": "572", "citations": [ { "type": "official", "cite": "204 Ill. App. 3d 566" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "558 N.E.2d 1378", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "201 Ill. App. 3d 96", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2592103 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/201/0096-01" ] }, { "cite": "417 N.Y.S.2d 884", "category": "reporters:state", "reporter": "N.Y.S.2d", "opinion_index": 0 }, { "cite": "391 N.E.2d 967", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "47 N.Y.2d 215", "category": "reporters:state", "reporter": "N.Y.2d", "case_ids": [ 4370182 ], "opinion_index": 0, "case_paths": [ "/ny-2d/47/0215-01" ] }, { "cite": "404 N.Y.S.2d 790", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1979, "opinion_index": 0 }, { "cite": "94 Misc. 2d 96", "category": "reporters:state", "reporter": "Misc. 2d", "case_ids": [ 1915123 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/misc2d/94/0096-01" ] }, { "cite": "448 P.2d 490", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1978, "opinion_index": 0 }, { "cite": "75 Wash. 2d 1", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 1082949 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/wash-2d/75/0001-01" ] }, { "cite": "97 N.Y.S.2d 467", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1968, "opinion_index": 0 }, { "cite": "198 Misc. 29", "category": "reporters:state", "reporter": "Misc.", "case_ids": [ 958803 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/misc/198/0029-01" ] }, { "cite": "424 S.W.2d 333", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 12047582 ], "year": 1950, "opinion_index": 0, "case_paths": [ "/sw2d/424/0333-01" ] }, { "cite": "386 N.E.2d 112", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "68 Ill. App. 3d 315", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3310845 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/68/0315-01" ] }, { "cite": "439 N.E.2d 475", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "108 Ill. App. 3d 732", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3011220 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-app-3d/108/0732-01" ] }, { "cite": "337 N.E.2d 15", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "61 Ill. 2d 416", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2966459 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ill-2d/61/0416-01" ] }, { "cite": "554 N.E.2d 586", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "197 Ill. App. 3d 363", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2482082 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/197/0363-01" ] }, { "cite": "475 U.S. 157", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6199238 ], "weight": 3, "pin_cites": [ { "page": "174" }, { "page": "139" }, { "page": "998" } ], "opinion_index": 0, "case_paths": [ "/us/475/0157-01" ] }, { "cite": "491 U.S. 554", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6216839 ], "weight": 6, "pin_cites": [ { "page": "562-63" }, { "page": "484-85" }, { "page": "2626" } ], "opinion_index": 0, "case_paths": [ "/us/491/0554-01" ] }, { "cite": "289 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3917212 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/289/0001-01" ] } ], "analysis": { "cardinality": 692, "char_count": 11998, "ocr_confidence": 0.75, "pagerank": { "raw": 5.0011153170616546e-08, "percentile": 0.314342843926422 }, "sha256": "a4f8aea7319556493d43a45e3c39aff97639766582b88cfe03c168200a765c59", "simhash": "1:f2df285abb427314", "word_count": 1912 }, "last_updated": "2023-07-14T21:36:30.653748+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re MARRIAGE OF REBECCA KAY DECKER, Petitioner-Appellee, and PAUL R. DECKER, Respondent (Kristen H. Fischer, Contemnor-Appellant)." ], "opinions": [ { "text": "JUSTICE STEIGMANN\ndelivered the opinion of the court:\nRespondent\u2019s attorney, Kristen Fischer, was held in direct civil contempt for refusing to obey the trial court\u2019s order that she disclose, either in open court or in camera, any information she possessed as to the intent of her client, Paul Decker, to commit a crime. On appeal, contemnor argues she cannot be compelled to divulge any such information because either it is protected by the attorney-client privilege or she has the absolute discretion to refuse disclosure under Rule 4\u2014 101 of the Code of Professional Responsibility (107 Ill. 2d R. 4 \u2014 101).\nThis issue arises in an all-too-frequent and tragic context. By the terms of a child custody order, petitioner was awarded custody of the minor daughter. Respondent was granted visitation rights. He exercised those rights on July 13, 1990, but failed to return the child to her mother at the appointed hour.\nBecause the whereabouts of respondent and the child were still unknown as of July 17, 1990, petitioner sought immediate relief from the trial court. Although the court quashed petitioner\u2019s subpoena requesting disclosure of respondent\u2019s current location, counsel was ordered to divulge any information she had as to her client\u2019s \u201cintent to commit a crime,\u201d because it had become obvious respondent had absconded with the child in apparent violation of the child custody order and the Illinois child abduction statute. (Ill. Rev. Stat. 1989, ch. 38, par. 10 \u2014 5.) Citing the attorney-client privilege, counsel refused to respond and declined the additional opportunity to reveal the information in camera so that the court could determine if a privilege existed. Upon her continued refusal to answer, counsel was held in direct civil contempt and ordered incarcerated until she purged herself by complying with the order. Sentence was stayed pending appeal.\nContemnor initially argues any information she possesses is \u201cprotected\u201d by the attorney-client privilege because it is confidential. This argument is without merit. The United States Supreme Court has repeatedly held the attorney-client privilege does not extend to communications between an attorney and a client where the purpose of that communication is to further a crime or to discuss future intended illegality. (Clark v. United States (1933), 289 U.S. 1, 77 L. Ed. 993, 53 S. Ct. 465.) Recently the Court stated:\n\u201cThe attorney-client privilege must necessarily protect the confidences of wrongdoers, but the reason for that protection \u2014 the centrality of open client and attorney communication to the proper functioning of our adversary system of justice \u2014 \u2018ceas[es] to operate at a certain point, namely, where the desired advice refers not to prior wrongdoing, but to future wrongdoing.\u2019 [Citations.] It is the purpose of the crime-fraud exception to the attorney-client privilege to assure that the \u2018seal of secrecy/ ibid., between lawyer and client does not extend to communications \u2018made for the purpose of getting advice for the commission of a fraud\u2019 or crime.\u201d (Emphasis in original.) (United States v. Zolin (1989), 491 U.S. 554, 562-63, 105 L. Ed. 2d 469, 484-85, 109 S. Ct. 2619, 2626.)\nIn the same vein is the following: \u201cAn attorney\u2019s duty of confidentiality, which totally covers a client\u2019s admission of guilt, does not extend to a client\u2019s announced plans to engage in future criminal conduct.\u201d Nix v. Whiteside (1986), 475 U.S. 157, 174, 89 L. Ed. 2d 123, 139, 106 S. Ct. 988, 998.\nThe focus is not, as contemnor would suggest, on whether the communications were intended to be confidential. The issue is whether they are privileged. Were it otherwise, an individual could always immunize any comment he made simply by communicating it to his attorney. Since the privilege may never be invoked to bar disclosure of communications in which a client seeks legal assistance to obtain illegal ends (In re Marriage of Granger (1990), 197 Ill. App. 3d 363, 554 N.E.2d 586), any communication from respondent to contemnor concerning his \u201cintent to commit a crime\u201d cannot be shielded from disclosure by mere invocation of the attorney-client privilege.\nContemnor also argues that Rule 4 \u2014 101(d) of the Code of Professional Responsibility grants her the absolute right to refuse to disclose this information. Rule 4 \u2014 101(d) provides, in pertinent part:\n\u201cA lawyer may reveal\n(1) confidences or secrets with the consent of the client or clients affected, but only after a full disclosure to them;\n(2) confidences or secrets when permitted under disciplinary rules or required by law or court order;\n(3) the intention of a client to commit a crime in circumstances other than those enumerated in paragraph (c) above.\u201d 107 Ill. 2d Rules 4-101(d)(l), (d)(2), (d)(3).\nIn contemnor\u2019s view, because she is vested with the initial discretion to determine whether to reveal a client\u2019s stated intent to a commit a crime, that discretion, which is not subject to review, is absolute and she may not be ordered to disclose the material, even in camera, under any circumstances. At oral argument, contemnor conceded that under her theory, greater protection over disclosure of client communications would be afforded by the disciplinary rule than has ever been recognized under the common law attorney-client privilege.\nWe find contemnor\u2019s argument unpersuasive for several reasons. In the first instance, if the attorney has complete discretion to reveal information described in the rule, it cannot be privileged, as a matter of law, because it is necessarily subject to disclosure at the \u201cwhim\u201d of the attorney. If the information were indeed privileged, it could never be legitimately disclosed absent consent of the client. 8 J. Wigmore, Evidence \u00a72291 (MeNaughton rev. 1961).\nIn addition, while an attorney may be under no affirmative duty to reveal a client\u2019s intent to commit the crime of child abduction (see Ill. St. Bar Ass\u2019n, Opinion 87 \u2014 9 (Mar. 11, 1988)), there is a vast difference between ethically declining to volunteer confidential information and refusing to disclose nonprivileged communications in response to a court order.\nIt is this crucial distinction which is fatal to contemnor\u2019s argument. Rule 4 \u2014 101, like other ethical rules governing the practice of law, defines the duty of an attorney to a client. In context, the rule clarifies that no ethical obligation of an attorney to a client is breached by disclosure of information under circumstances identified in the rule irrespective of whether disclosure is made in the discretion of the attorney or at the insistence of the court. Nothing in the language of the rule supports the contention an attorney \u201cmay\u201d resist court-ordered disclosure of nonprivileged information. To the contrary, Rule 4 \u2014 101(d)(2) explicitly states that disclosure may be compelled. Contemnor\u2019s interpretation of the language of the rule distorts its plain meaning.\nContemnor\u2019s corollary argument, that disclosure may not be required even in camera, is an unprecedented departure from the established law of attorney-client communications. The party asserting an attorney-client privilege bears the burden of establishing all elements of the privilege. One who claims to be exempt by reason of privilege from the general rule which compels all persons to disclose the truth has the burden of showing the facts which give rise to the privilege. The mere assertion that the matter is confidential and privileged will not suffice. (Cox v. Yellow Cab Co. (1975), 61 Ill. 2d 416, 337 N.E.2d 15; McDonald\u2019s Corp. v. Levine (1982), 108 Ill. App. 3d 732, 439 N.E.2d 475.) An in camera examination of the disputed materials or communications is a reasonable way to protect the privilege, if it exists, or to prevent groundless assertions of the privilege, if it does not. Johnson v. Frontier Ford, Inc. (1979), 68 Ill. App. 3d 315, 386 N.E.2d 112; Zolin, 491 U.S. 554, 105 L. Ed. 2d 469, 109 S. Ct. 2619.\nHaving considered contemnor\u2019s arguments, we conclude no privilege attaches to any communications between respondent and counsel concerning respondent\u2019s intent to commit a crime. Irrespective of the discretion vested in contemnor by Rule 4 \u2014 101, disclosure of such communications may be compelled by the court. Further, an in camera proceeding is an appropriate method to provide protection to communications which may, in the court\u2019s determination, be subject to a privilege in whole or in part.\nContemnor also raises several arguments concerning the evidentiary value of the information sought. We need not consider these, however, because the issue before us involves only an attorney\u2019s duty to disclose information when directed to do so by the court, not the information\u2019s relevance or admissibility.\nLikewise, petitioner\u2019s argument that contemnor can be required to disclose the whereabouts of her client, if she knows, is also not before this court on appeal. The trial court, by interlocutory order, quashed petitioner\u2019s original demand for this information as \u201ctoo vague.\u201d As that ruling is not final, it is subject to modification. See Jafarian-Kerman v. Jafarian-Kerman (Mo. App. 1967), 424 S.W.2d 333; Falkenhainer v. Falkenhainer (1950), 198 Misc. 29, 97 N.Y.S.2d 467; Dike v. Dike (1968), 75 Wash. 2d 1, 448 P.2d 490; In re Jacqueline F. (1978), 94 Misc. 2d 96, 404 N.Y.S.2d 790, aff\u2019d (1979), 47 N.Y.2d 215, 391 N.E.2d 967, 417 N.Y.S.2d 884.\nContemnor also requests that this court vacate the order of incarceration because her refusal to comply with the trial court\u2019s order was in good faith and made to protect her client\u2019s confidences and secrets. The record supports contemnor\u2019s assertion that she was acting in good faith, and we recognize that in some circumstances, such as here, contempt procedures are an appropriate method by which to test orders which are collateral to the principal action. Accordingly,, we conclude the stay of sentence previously entered should be continued pending further hearing before the trial court on remand, at which time contemnor should be permitted anew to purge her contempt so as to suffer no further disability.\nIn her petition for rehearing, contemnor argues that our decision is in direct conflict with a recent opinion issued by the Second District Appellate Court in Cesena v. Du Page County (1990), 201 Ill. App. 3d 96, 558 N.E.2d 1378. We disagree. In the first instance, the issue in Cesena was whether an attorney could be held in contempt for refusing to disclose information which was expressly subject to an attorney-client privilege. In this case, no such privilege exists. Furthermore, a client\u2019s intent to commit a crime, unlike a client\u2019s identity in \u201cunique and unusual\u201d circumstances, is not a \u201cconfidence\u201d or \u201csecret\u201d as those terms are defined under the Code of Professional Responsibility. To qualify as such, a communication must be made within the ambit of a legitimate professional relationship. Announcing plans to engage in future criminal conduct or seeking legal advice in furtherance of illegal ends are always outside the scope of any valid attorney-client relationship. Finally, given the court\u2019s holding that the client in Cesena waived any privilege against disclosure, the court\u2019s remark that an attorney has the discretion to refuse to reveal this information under Rule 4 \u2014 101 is broadly worded dictum, the validity of which we need not speculate about.\nFor the foregoing reasons, the judgment of the circuit court of Champaign County is affirmed.\nAffirmed and remanded.\nKNECHT, P.J., and GREEN, J., concur.", "type": "majority", "author": "JUSTICE STEIGMANN" } ], "attorneys": [ "Shari D. Goggin-Ward, of Kirtley-Pavia-Marsh, P.C., of Urbana, and Charles L. Palmer, of Franklin, Flynn & Palmer, of Champaign, for appellant.", "William D. McGrath, of McGrath & McGrath, of Champaign, for appellee." ], "corrections": "", "head_matter": "In re MARRIAGE OF REBECCA KAY DECKER, Petitioner-Appellee, and PAUL R. DECKER, Respondent (Kristen H. Fischer, Contemnor-Appellant).\nFourth District\nNo. 4 \u2014 90\u20140488\nOpinion filed October 4, 1990.\nModified on denial of rehearing November 16,1990.\nShari D. Goggin-Ward, of Kirtley-Pavia-Marsh, P.C., of Urbana, and Charles L. Palmer, of Franklin, Flynn & Palmer, of Champaign, for appellant.\nWilliam D. McGrath, of McGrath & McGrath, of Champaign, for appellee." }, "file_name": "0566-01", "first_page_order": 588, "last_page_order": 594 }