noting that Illinois adheres to a strong policy of encouraging disclosure, with an eye toward ascertaining truth
How later courts described this case
- noting that Illinois adheres to a strong policy of encouraging disclosure, with an eye toward ascertaining truth
- “Here, it is undisputed that Berkman owed Mueller a fiduciary duty, and Mueller has made out a prima facie case that Berkman nonetheless profited from a separate relationship with one of Mueller’s suppliers, without Mueller’s knowledge. Under these circumstances, we find that the intentional breaches of fiduciary duty alleged here were on a par with the level of fraud necessary to establish the crime-fraud exception.”
- abrogated on other grounds by People v. Radojcic, 998 N.E.2d 1212, 1223-27 (Ill. 2013)
- although a discovery order is generally reviewed for an abuse of discretion, a trial court's determination of whether a privilege applies is reviewed de novo.
Written by the judges who cited it.
The opinion
JUSTICE O’MALLEY, specially concurring:
The majority holds that Katten’s dual representation of Berkman and Mueller meant that Berkman could not have a reasonable expectation of confidentiality in its communications with Katten. I disagree. As the majority makes clear in other parts of its opinion, “Berkman’s communications with Katten appear to have concerned actions that Berkman wished to take that could be adverse to Mueller’s interests” (399 Ill. App. 3d at 469) and, “[a]t Berkman’s request, Katten assisted Berkman in setting up his interest in Lota USA and in concealing the fact that Berkman held such an interest” (399 Ill. App. 3d at 470-71). Under those facts as the majority states them, there should be no question but that Berkman engaged Katten on these matters with the expectation that they would not be disclosed to Mueller. It therefore puzzles me to see the majority’s conclusion, preceded by a recitation of the parties’ positions but no analysis as to which is the stronger position, that “Berkman could not reasonably have believed that his communications with Katten would be confidential.” 399 Ill. App. 3d at 465.
The majority takes this contradiction one step further when it discusses the Bevill test created to determine whether corporate officers got their legal advice “in their role as corporate officials,” so that they should not expect their communications to be kept confidential from the corporation, or for “matters not related to their role as officers of the corporation,” so that they should expect confidentiality. Bevill, 805 F.2d at 125. The majority states that “[tjhere is no suggestion in the record that the communications requested here solely concerned Berkman’s individual liability, or any other matter outside the scope of Mueller’s corporate concerns and affairs” and that, “[t]o the contrary, Mueller’s document request seeks documents relating to the legal advice Berkman received from Katten about his relationship with Lota USA (a supplier to Mueller) and the creation of Homewerks (a competitor to Mueller).” 399 Ill. App. 3d at 467. (Incidentally, by the vague phrase “his relationship with Lota USA (a supplier to Mueller),” the majority describes a relationship allegedly created to allow Berkman to siphon kickbacks and bribes relating to Mueller’s relationship with Lota USA.) I struggle to understand how an attorney’s helping a corporate officer conceal a kickback and bribe scheme with a supplier and set up a competitor to the corporation can be deemed within the corporation’s concerns and affairs, so that the officer should expect the corporation to be privy to the advice. In any event, in its discussion of the dual-representation issue, the majority’s characterization of the nature of Berkman and Katten’s communications is diametrically opposite its characterization of those communications in the remainder of the opinion.
If the majority means to imply that the fifth prong of the Bevill test — whether the communications concerned “matters within the company or the general affairs of the company” (Bevill, 805 F.2d at 123) — should be read to encompass any communications that have any effect whatsoever on the company, including even communications on matters intentionally withheld from the company, then the majority has read the prong so broadly that it has untethered the Bevill test from its purpose. As I have said, the Bevill test seeks to determine whether the corporate officer who obtained the advice was acting in his role as a corporate officer. A corporate officer organizing a competitor, and concealing a scheme of kickbacks and bribes, is acting decidedly outside his official role. Further, his scheme would quite obviously depend on his corporation’s not being apprised of his activities. He would therefore receive advice on those matters with the expectation that the advice would be kept confidential from the corporation. Accordingly, under either the Illinois test or the Bevill test, the fact that Katten represented both Berkman and Mueller does not mean that Berkman should not have expected Katten’s advice to him personally to be kept confidential.
Although the majority deviates from this understanding of Berk-man’s actions in its discussion of the dual-representation issue, it characterizes his actions correctly (albeit inconsistently) in its discussion of the fiduciary-duty and crime-fraud exceptions to the attorney-client privilege. I therefore agree with the majority that, although the fiduciary-duty exception does not apply, this matter must be remanded for an in camera inspection to determine the applicability of the crime-fraud exception as well as the fifth amendment privilege.