At Issue Waiver of the Attorney-Client Privilege in Illinois: An Exception in Need of a Standard

This essay analyzes the "at issue" exception to the attorney-client privilege and suggests the adoption of a specified standardized test for finding the exception in Illinois. In general terms, at issue waiver of the attorney-client privilege occurs when a party pleads a claim or defense that places at issue the subject matter of privileged material over which she has control. Throughout the years, United States jurisdictions have employed four approaches for testing the application of the at issue exception, although recently the focus has been on two primary tests (the Hearn test and the anticipatory waiver test). Illinois courts have used the at issue exception to find waiver of the attorney-client privilege in a number of cases, but have yet to elucidate a test or set of standards for finding such waiver.

This ad hoc approach has led to inconsistent case law and uncertainty in the area of attorney-client privilege. After examining Illinois case law, the article concludes by presenting the argument that Illinois courts should adopt the anticipatory waiver test for finding the at issue exception to the attorney-client privilege.