Illinois Lawyer Investigations of Current Client Concerns

When questions are raised by a current client regarding an attorney’s representation of the client, the questioned attorney should be able to seek counsel confidentially. Such a conferral will often benefit the attorney, the firm and the client. Advice regarding questioned conduct should be encouraged, not discouraged. To prompt such conferrals, an attorney-client communication and a work product privilege should be available in Illinois, with availability not dependent upon whether in-house, outside or other attorneys are sought for counsel. While early federal precedents were split, increasingly under other state high court precedents the attorney-client communication privilege is available. Its recognition by the Illinois Appellate Court in 2012 in Garvy should be followed. As well, work product privileges should also be available, though they have not as yet been widely discussed nationally. Yet, because of federal-state and interstate differences in the two privileges, Illinois attorneys and judges must proceed cautiously as not all out-of-state precedents can be followed. The article reviews how Illinois attorneys should best investigate when their legal work is questioned by current clients and how judges should protect such investigations via Illinois’ somewhat unique privilege laws.