Cesena v. Du Page County

JUSTICE WOODWARD, specially concurring:

I agree with the majority that the facts in this case invoke the “substantial harm” exception to the general rule that disclosure of a client’s name is not protected by the attorney-client privilege. Under the facts of this case, the attorney-client privilege has been waived. Succinctly, John Doe waived the attorney-client privilege of his own accord and with the consent and approval of attorney Fawell when he accompanied Fawell to the sheriff’s office where Fawell attempted to file the required report.

Fawell stated that his client, John Doe, accompanied him to the sheriff’s office, which was a public building, and the route to get to the building was exposed to the view of anyone present. Fawell stated that his client was standing in the general vicinity of where he was standing when he attempted to give the report to deputy sheriff Paine. Fawell stated that he did indicate to Paine that his client was with him by a gesture of his hand. Fawell described the window that Paine was behind when he attempted to submit the report. It was similar to a walk-up bank window with thick glass and a U-shaped opening under the window.

In his argument to this court, Fawell draws a distinction between acts that are “compelled” and those that are “voluntary.” Although the majority rejected this argument, I agree with Fawell that since the making of the report was required by section 11 — 401(b), it was “compelled” testimony and, therefore, did not waive the attorney-client privilege. (See New Jersey v. Portash (1979), 440 U.S. 450 , 59 L. Ed. 2d 501 , 99 S. Ct. 1292 ; Simpson v. Braider (D.D.C. 1985), 104 F.R.D. 512 .) However, nothing “compelled” John Doe to accompany Fawell to the sheriff’s office, a public building, to make the report.

The purpose behind section 11 — 401(b) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 401(b)) is to obtain information. Nothing in the language of that statute prohibits a third party, such as an attorney, from making the report on behalf of a client. Indeed, that is exactly what Fawell was attempting to do when he began to read the statement to Deputy Paine. By so doing, Fawell acknowledged that his client’s presence at the sheriff’s office was unnecessary and hence not “compelled” but “voluntary.” The fact that Deputy Paine did not see John Doe is irrelevant since Fawell testified that John Doe accompanied him to the sheriff’s office; therefore, there was no intent by Fawell or John Doe not to disclose John Doe’s identity. Thus, although the making of the report was required by the statute and, therefore, “compelled,” John Doe’s presence at the sheriff’s office was voluntary and with his attorney’s consent. These facts waive the attorney-client privilege.