The Cangelosi Ruling and Attorney-Client Privilege
Clifford's Notes, Chicago Lawyer, 09/01/2006By Robert A. Clifford
John Cangelosi filed a medical malpractice complaint after he suffered severe, permanent damage to his spine, leaving him disabled following an 11-day stay at Rockford Memorial Hospital.
After he had been in the hospital a couple of days, he experienced “a change in his condition and could no longer move his extremities.” The nurse on duty witnessed this and wrote notes of what she had observed that evening at her home. She put them in her kitchen drawer for 22 months.
When the nurse became involved in the litigation, her attorneys argued that her notes were protected under the attorney-client privilege or the work product doctrine. The trial court and the appellate court disagreed, holding that these materials were not protected under either theory and that the attorney should be held in direct civil contempt of court for refusing to produce them. Cangelosi v. Capasso, No. 2-05-0643 (2nd Dist., June 30, 2006). The nurse’s attorney has filed a Petition for Leave to Appeal to the Illinois Supreme Court.
Historically, the attorney-client privilege rests upon the notion that informed, effective legal counsel require full disclosure of a client’s legal issues and that a client will reveal full details only if the confidential information is protected. The relationship is based upon trust. Rhoades v. Norfolk & Western Railway Company, 78 Ill.2d 217, 399 N.E.2d 969 (1979).
Illinois Supreme Court Rule 201(b)(2) governs the disclosure of privileged communication. Against the backdrop, the appellate court has held, “Illinois has ‘a strong policy of encouraging disclosure’ [citation omitted] ... [and] strictly confine[s] the privilege within its narrowest possible limits.” Western States Insurance Co. V. O’Hara, 357 Ill.App.3d 509, 516, 828 N.E.2d 842 (4th Dist.2005).
Illinois courts have found that the protection of the attorney-client privilege is triggered when “a claimant must show that (1) a statement originated in confidence that it would not be disclosed; (2) it was made to an attorney acting in his legal capacity for the purpose of securing legal advice or services; and (3) it remained confidential.” Cangelosi, citing Rounds v. Jackson Park Hospital & Medical Center, 319 Ill.App.3d 280, 285-86, 745 N.E.2d 561 (1st Dist.2001).
The work product doctrine is considered to provide broader protection for attorneys because it “is designed to protect the right of an attorney to thoroughly prepare his case and to preclude a less diligent adversary attorney from taking undue advantage of the former’s efforts.” Id.
In finding that neither the attorney-client privilege not the work product doctrine applied in Cangelosi, the court held that the nurse’s “notes were not a communication with an attorney for the purpose of securing legal advice” and that they “contained her own factual recollection of events.” Id.
There is much concern today about the attorney-client privilege. In this age of electronic discovery, exposing materials to opposing attorneys, either inadvertently or intentionally, seems to be occurring more frequently. Furthermore, in this post-Enron, post-Arthur Anderson era, the government’s crackdown on corporate crime has compromised the attorney-client privilege in the name of seeking justice.
I just returned from the America Bar Association’s Annual Meeting, where heated discussions took place in the House of Delegates over this sensitive issue. That governing body, which speaks for some 400,000 lawyers nationwide, passed a number of resolutions on the disclosure of protected communications.
Following a lively debate, the House approved a resolution that called for a consistent rule dealing with the inadvertent disclosure of materials protected by the attorney-client privilege or the work product doctrine. If material is inadvertently produced to one’s adversary, the attorney seeking to invoke the privilege should do so early and often. The longer the documents are out of his possession, the more difficult a claim of privilege can become. See Western United Life Assurance Co. v. Fifth Third Bank, F.2d (N.D.Ill.2004).
The House of Delegates also passed a resolution that called for communications between lawyers and their experts to be kept confidential "except on a showing of exceptional circumstances." It also attempted to strengthen the privilege when company financial statements are audited, urging federal agencies to ensure that communications between lawyers and clients, as well as their work product, remain privileged during an investigation.
In my three decades of practice, I have found that plaintiffs have an uphill battle in obtaining necessary documents to prove their cases, as is evident in Cangelosi. It is clear there that the nurse was carrying out her job in caring for her patient, whether a lawsuit ensured or not. Certainly, the courts will consider debate on this pivotal issue in making a final decision.
Courts must continue to order the release of documents that have a substantial bearing on a plaintiff’s case, particularly when obtaining the same information from other sources is impossible or would create unwieldy hardships. At the same time, courts must be mindful of lawyers giving informed legal advice, which depends upon full disclosure by the client. Above all, the search for truth should be the ultimate goal in making decisions on disclosure and to assure the proper functioning of the adversary process.
