                             2017 IL App (2d) 160860       

                                  No. 2-16-0860

                          Opinion filed December 8, 2017 

______________________________________________________________________________

                                            IN THE

                             APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
____________________________________________________________________________

JANE A. DOE,                                 ) Appeal from the Circuit Court
                                             ) of Lee County.
       Plaintiff-Appellant,                  )
                                             )
v.                                           ) No. 15-L-4
                                             )
WILLIAMS McCARTHY, LLP; CLAYTON )
LINDSEY; and TREVA SARVER, Individually)
and as Trustee of the Ruby Louise Lance      )
Living Trust Dated September 2, 2009, and as )
Successor Trustee of the Ruby Louise Lance )
Revocable Living Trust Dated March 15, 2002, ) Honorable
                                             ) Daniel A. Fish,

       Defendants-Appellees.                 ) Judge, Presiding.

____________________________________________________________________________

       PRESIDING JUSTICE HUDSON delivered the judgment of the court, with opinion.
       Justices Hutchinson and Spence concurred in the judgment and opinion.

                                          OPINION

¶1                                   I. INTRODUCTION

¶2     Plaintiff, Jane A. Doe, appeals an order of the circuit court of Lee County dismissing her

complaint against defendants, Williams McCarthy, LLP (Williams McCarthy); Clayton Lindsey,

and Treva Sarver (individually and in her capacities as trustee of the Ruby Louise Lance Living

Trust dated September 2, 2009 and successor trustee of the Ruby Louise Lance Revocable

Living Trust dated March 15, 2002), in accordance with section 2-619 of the Code of Civil
2017 IL App (2d) 160860


Procedure (Code) (735 ILCS 5/2-619 (West 2016)). For the reasons that follow, we affirm in

part, reverse in part, and remand.

¶3                                     II. BACKGROUND

¶4     Plaintiff’s second amended complaint alleged as follows.          Plaintiff previously sued

Sarver regarding “the validity of the Trust and Estate of a Decedent” (the trust litigation). Sarver

was represented in the trust litigation by attorney Lindsey and the law firm that employed him,

Williams McCarthy. Plaintiff alleged that defendants violated an order pursuant to the Health

Insurance Portability and Accountability Act of 1996 (42 U.S.C. § 1320d et seq. (2012)) (HIPAA

order) and the Illinois Mental Health and Developmental Disabilities Confidentiality Act (Act)

(740 ILCS 110/1 et seq. (West 2016)) by disclosing to persons, including the public, without

plaintiff’s consent and without following the procedures specified in the Act, facts pertinent to

plaintiff’s mental-health status and treatment.

¶5     Plaintiff alleged that, in connection with the trust litigation, defendants filed 11

subpoenas containing protected information. Plaintiff continued, “the [Lee County circuit court]

allowed the public to access and view court documents in the [trust litigation], including the

documents contained within Plaintiff’s court file such as the above-mentioned eleven subpoenas,

all of which identified Plaintiff’s medical providers and mental health providers, via in-person

viewing and via on-line case information searching, until the court entered an Order, on [July 26,

2013], sealing the file from public access.” According to plaintiff, this violated the HIPAA

order, entered on March 13, 2012, which limited access to such records to “attorneys of record

and the staff of the attorneys of record.” The complaint went on to allege that defendants knew

that certain individuals were “therapists,” that Sinnissippi Centers, Inc., in Dixon and Rochelle

were mental-health treatment facilities, and that the disclosure of the records of such individuals


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and facilities violated the Act to the extent that the procedures set forth in the Act were not

followed.

¶6     The complaint further alleged that Williams McCarthy and Lindsey conveyed such

information to Sarver, in violation of the HIPAA order. Further, contrary to the provisions of the

Act, defendants did not notify plaintiff’s treatment providers that they were seeking access to

plaintiff’s mental-health records. Moreover, defendants failed to make the threshold showing

that plaintiff had placed her mental health at issue in the trust litigation. Also, prior to any

disclosure, the trial court was required to make an in camera review of the records. The

subpoenas were not accompanied by a judge’s written order authorizing the disclosure.

¶7     The complaint alleged that Williams McCarthy and Lindsey contacted plaintiff’s

treatment providers and threatened that they would be held in contempt if they did not release

plaintiff’s records. During a deposition, Williams McCarthy and Lindsey attempted to question

a psychiatrist about plaintiff’s mental-health status and treatment, in violation of the HIPAA

order and the Act.

¶8     The complaint further alleged that Sarver violated the HIPAA order by “viewing and

copying such records of Plaintiff[] and by obtaining and viewing a listing of Plaintiff’s medical

providers and mental health providers which Defendants Williams McCarthy and Lindsey had

obtained from Attorney Paul Whitcombe, who was then Plaintiff’s counsel in the [trust

litigation].” Plaintiff stated that, during a deposition, Sarver “made an outburst and yelled,

within the hearing of and in the presence of the parties, their counsel, the court reporter, and the

deponent, that the Plaintiff was mentally ill.” In May 2013, plaintiff received three envelopes in

the mail, with no return addresses, containing copies of various medical records, mental-health

records, and subpoenas. Finally, during the pendency of the trust litigation, defendants made


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statements, in open court and in the presence of the public, concerning plaintiff’s mental-health

status, diagnoses, and treatment.

¶9     The complaint set forth five counts under which plaintiff sought relief, incorporating by

reference the material set forth above. The first count set forth a claim under the Act as to all

defendants. It alleged that defendants violated the Act by seeking and obtaining plaintiff’s

mental-health records even though she did not place her mental health at issue; seeking and

obtaining such records without ensuring that the trial court had conducted an in camera review

of them; seeking and obtaining such records without ensuring that the trial court had made the

requisite findings under the Act after conducting an in camera review; seeking and obtaining

such records without written notice to plaintiff and her mental-health treatment providers;

seeking a court order requiring plaintiff to sign a written consent to the disclosure of such

records; filing a motion to dismiss, “seeking to punish [p]laintiff for exercising her statutory

privilege to refuse to disclose” such records; and issuing subpoenas that did not comply with the

Act.

¶ 10   Count II alleged legal malpractice on the part of Williams McCarthy and Lindsey. It first

alleged an attorney-client relationship between all defendants. It then claimed that plaintiff was

a third-party beneficiary of the attorney-client relationship. Plaintiff based this claim on the fact

that Lindsey drafted the HIPAA order, purportedly for plaintiff’s benefit. Thus, plaintiff reasons,

Williams McCarthy and Lindsey owed her a duty of reasonable care. The actions taken by

Williams McCarthy and Lindsey that led to the disclosure of certain mental-health records

breached this duty.

¶ 11   Plaintiff’s third count alleged negligent supervision on the part of Williams McCarthy.

This count sought to hold Williams McCarthy liable for failing to prevent Lindsey from violating


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the HIPAA order and the Act. Plaintiff argued that Lindsey’s repeated violations indicated his


“particular unfitness for the position of attorney.”


¶ 12   Count IV, pertaining to all defendants, alleged an invasion of plaintiff’s privacy by the


“public disclosure of private facts.” It alleged as follows:


               “The actions and inactions of the Defendants constituted a public disclosure of

       private facts as to the Plaintiff, in that public disclosure was made by Defendants placing

       Plaintiff’s confidential medical health and mental health information within the court file,

       accessible to the public; and by Defendants creating and disseminating written and oral

       statements to other persons, including but not limited to statements made to Defendant

       SARVER, Dr. Anthony D’Souza, Karyn Martin-Boht, Dr. Thomas Dennison, and

       Attorney Bob Thompson, and statements made in open court, in courtrooms where

       members of the public, and attorneys, were gathered and had access to oral statements

       made by Defendants.”

According to plaintiff, this constituted an invasion of privacy, a violation of the HIPAA order,

and a violation of the Act.

¶ 13   The fifth count alleged intentional infliction of emotional distress. This count alleged

that defendants’ violations of the Act and the HIPAA order exhibited “wanton and utter

indifference” to plaintiff’s rights and constituted “extreme and outrageous conduct.” Further,

defendants knew or should have known that their actions would cause plaintiff emotional

distress, which was also their intent.

¶ 14   Defendants moved to dismiss pursuant to section 2-619 of the Code. The trial court

granted the motion. It first noted that the instant litigation arose out of the previous trust

litigation, which was in front of a different trial judge, Judge Ackert. The trust litigation


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concerned claims that the settlor, Ruby Lance, lacked the capacity to execute a trust and that

Sarver exerted undue influence over Lance, which caused plaintiff to be excluded from the trust.

During that litigation, plaintiff alleged, defendants subpoenaed, obtained, and made part of the

court file certain of plaintiff’s medical and mental-health records. The issues presented in the

motion to dismiss, the trial court noted, were whether counts I, IV, and V were barred by the

absolute-litigation privilege and whether, with respect to counts II and III, any duty existed and

extended to plaintiff. The trial court found that Williams McCarthy and Lindsey owed no duty

to plaintiff, and it dismissed counts II and III on that basis. It expressly found that the HIPAA

order was not drafted with the primary intent to benefit plaintiff; rather, Williams McCarthy and

Lindsey simply intended to comply with the law.

¶ 15   As for the remaining counts, the trial court found that they were barred by the absolute-

litigation privilege. It noted that the privilege applied to claims of intentional infliction of

emotional distress and invasion of privacy. Although count I was based on the Act, it was in the

nature of an invasion-of-privacy claim, so the privilege applied to it as well. The trial court

further noted that plaintiff’s mental-health records were relevant to the trust litigation.      It

observed that one of the issues was whether the reason plaintiff was left out of Lance’s “will or

trust” was her estrangement from Lance. Plaintiff’s need for counseling was purportedly due, in

part, to this estrangement, and the mental-health records would substantiate this. There was also

an issue regarding whether, in assessing Lance’s mental capacity, a doctor attributed some of

plaintiff’s history to Lance. Thus, plaintiff’s records were relevant to cross-examining the doctor

and assessing his opinion. Finally, the trial court noted that conduct in a previous case typically

cannot form the basis of a cause of action in a new case.




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¶ 16   Subsequently, plaintiff filed a motion to reconsider. The trial court denied the motion.

This appeal followed.

¶ 17                                      III. ANALYSIS

¶ 18   On appeal, plaintiff limits her arguments to counts I, IV, and V, the counts dismissed

pursuant to the absolute-litigation privilege.       She makes no argument here that Williams

McCarthy or Lindsey owed her a duty (thus, counts II and III will not be addressed any further).

As this appeal comes to us following the grant of a motion to dismiss pursuant to section 2-619

of the Code, review is de novo. Khan v. Deutsche Bank AG, 2012 IL 112219, ¶ 18. Moreover, a

motion to dismiss under section 2-619 “admits the legal sufficiency of the complaint, admits all

well-pleaded facts and all reasonable inferences therefrom, and asserts [that] an affirmative

matter outside the complaint bars or defeats the cause of action.” Reynolds v. Jimmy John’s

Enterprises, LLC, 2013 IL App (4th) 120139, ¶ 31. Here, the affirmative matter relied on by

defendants is the absolute-litigation privilege.

¶ 19   The absolute-litigation privilege immunizes certain statements and conduct by attorneys

in the course of litigation. See, e.g., Medow v. Flavin, 336 Ill. App. 3d 20, 32 (2002). Also, “[a]

private litigant enjoys the same privilege concerning a proceeding to which he is a party.”

Johnson v. Johnson & Bell, Ltd., 2014 IL App (1st) 122677, ¶ 15. The privilege is based on

section 586 of the Restatement (Second) of Torts, which provides as follows:

       “An attorney at law is absolutely privileged to publish defamatory matter concerning

       another in communications preliminary to a proposed judicial proceeding, or in the

       institution of, or during the course and as part of, a judicial proceeding in which he

       participates as counsel, if it has some relation to the proceeding.” Restatement (Second)

       of Torts § 586 (1977).


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The purpose of the privilege is to allow attorneys “ ‘the utmost freedom in their efforts to secure

justice for their clients.’ ” Kurczaba v. Pollock, 318 Ill. App. 3d 686, 701-02 (2000) (quoting

Restatement (Second) of Torts § 586 cmt. a, at 247 (1977)). It further serves to facilitate the free

flow of information between attorneys, clients, and the court system. O’Callaghan v. Satherlie,

2015 IL App (1st) 142152, ¶ 24. Its application “is limited, however, to instances where the

administration of justice and public service require immunity.” Id. As an absolute privilege, the

class of communications to which it applies is narrow. Kurczaba, 318 Ill. App. 3d at 701. For

the privilege to apply, the communication must bear some relationship to the proposed or

“pending litigation” and it must be in furtherance of that litigation. O’Callaghan, 2015 IL App

(1st) 142152, ¶ 25. However, this latter requirement is not strictly applied, and all doubts are to

be resolved in favor of finding the communication pertinent to the litigation. Id. Indeed, when

the privilege applies, “no liability will attach even at the expense of uncompensated harm to the

plaintiff.” Id.

¶ 20    We will first examine counts IV and V—alleging common-law invasion of privacy and

intentional infliction of emotional distress, respectively. In Johnson, 2014 IL App (1st) 122677,

¶¶ 14-18, the court found the privilege applicable to claims of “invasion of privacy, negligence,

negligent infliction of emotional distress, and breach of oral and written contracts.” See also

O’Callaghan, 2015 IL App (1st) 142152, ¶ 26 (holding privilege applies to action alleging

intentional infliction of emotional distress). Hence, we have little difficulty concluding that the

trial court correctly determined that the privilege applied to bar counts IV and V. These counts

were based on acts done in the course of and in furtherance of the trust litigation. Plaintiff

complained that defendants placed material in the court file and made statements in open court.

Counts IV and V relied—generally—on the same acts. Seeking information from witnesses,


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issuing subpoenas, and seeking to obtain and enforce discovery are intimately related to

litigation. In short, the acts of which plaintiff complained were clearly pertinent to the trust

litigation, so the privilege plainly applies. Recasting the same acts as different torts does not

avoid this bar. See Johnson, 2014 IL App (1st) 122677, ¶¶ 17-18.

¶ 21   Plaintiff makes several arguments as to why the trial court erred in holding that the

absolute-litigation privilege barred her claims. She sets forth three circumstances under which,

she states, the privilege does not apply. The first is where the communication does not further

some interest of social importance. See Edelman, Combs & Latturner v. Hinshaw & Culbertson,

338 Ill. App. 3d 156, 164 (2003). We agree; however, we note that representing a client’s

interests is of social importance. Id. at 167. As defendants’ actions were in furtherance of

Sarver’s interests in the trust litigation, this circumstance does not apply here. Second, plaintiff

states that, where a communication was made by an attorney to a person other than a client, the

privilege does not apply. She cites Kurczaba, 318 Ill. App. 3d at 704-05, but that case actually

holds, “From the above cases, it is evident that Illinois clearly limits the attorney litigation

privilege and has refused to extend it to third-party communications unrelated to a lawsuit.”

(Emphasis added.) Id. at 705. Plaintiff omits the criterion that the communication be unrelated

to the lawsuit, which is not the case here. Hence, Kurczaba is distinguishable on this basis.

Third, she contends that, where there are no safeguards against abuse, like the ability to

discipline an attorney or strike sensitive material from the record, the privilege does not apply.

See Stein v. Krislov, 2013 IL App (1st) 113806, ¶ 35. Here, defendants’ actions occurred in a

judicial proceeding, so the trial court could have imposed sanctions. Further, the trial court did

seal the records at issue. As such, this circumstance is not present here either.




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¶ 22   Plaintiff next contends, quoting Thompson v. Frank, 313 Ill. App. 3d 661, 664 (2000),

that the privilege does not apply to “ ‘an attorney’s out-of-court communications to’ persons

other than the attorney’s own client and opposing counsel.” Thompson does, in fact, state, “In

Illinois, the absolute privilege concerning communications related to a judicial proceeding has

been extended to out-of-court communications between opposing counsel, between attorney and

client related to pending litigation, and between attorneys representing different parties suing the

same entities,” but “Illinois courts have not extended the privilege to cover an attorney’s out-of­

court communications to other persons.” Id. Plaintiff complains that information protected by

the Act was disseminated to her mental-health treatment providers, unidentified persons present

in the courtroom, unidentified members of the public, attorneys not of record, persons present

during depositions, and unidentified persons who (might have) viewed the court file.

¶ 23   In O’Callaghan, 2015 IL App (1st) 142152, ¶ 29, the court held that the privilege applied

to communications between an attorney and individuals remediating a condition (mold in a

condominium) that was the subject of the pending legal action. It explained, “[the defendant­

attorney’s] alleged directions to the individuals remedying the condominium were not made to

an outsider within the meaning of the privilege; rather, neither [the attorney] nor the workers

would have had reason to be in [the plaintiff’s] condominium but for the mold, the subject of this

litigation.” Id. In this case, almost all of the people upon whom plaintiff bases her claim bore a

relationship to the litigation, whether it be courtroom personnel, participants in a deposition, or

potential witnesses. To the extent that plaintiff seeks to rely on unidentified members of the

general public who might have viewed the court proceedings or the court file (and who might not

have had some relationship to the litigation), her allegations are far too speculative to merit

consideration. See Alpha School Bus Co. v. Wagner, 391 Ill. App. 3d 722, 735 (2009).


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¶ 24   Turning to count I, we perceive different concerns at issue. Plaintiff argues that the

absolute-litigation privilege has never been applied to bar a proceeding under the Act. She

further criticizes the trial court’s attempt to analogize an action under the Act to an invasion-of­

privacy claim. Defendants acknowledge that the privilege has not previously been applied in this

context. Unlike with the common-law counts, here we must consider whether the privilege can

thwart a legislative enactment. Indeed, the chief flaw with the trial court’s analogy is that

invasion of privacy is a common-law theory whereas an action based on the Act is statutory.

¶ 25   The Act itself plainly creates a private right of action. Section 15 of the Act states, “Any

person aggrieved by a violation of this Act may sue for damages, an injunction, or other

appropriate relief.” 740 ILCS 110/15 (West 2016). Section 3(a) states that “[a]ll records and

communications shall be confidential and shall not be disclosed except as provided in this Act.”

740 ILCS 110/3(a) (West 2016). Furthermore, in accordance with section 10, the Act applies “in

any civil, criminal, administrative, or legislative proceeding.” 740 ILCS 110/10 (West 2016).

Thus, the plain language of various provisions of the Act indicates that the legislature intended it

to control all releases of the material it makes confidential in all types of proceedings and that a

safeguard against improper disclosure is a civil action. It has been held that “the Act constitutes

a ‘strong statement’ by the General Assembly about the importance of keeping mental health

records confidential. [Citation.]” Norskog v. Pfeil, 197 Ill. 2d 60, 71 (2001). Conversely, the

absolute-litigation privilege applies to a “narrow class of cases.” Bushell v. Caterpillar, Inc., 291

Ill. App. 3d 559, 561 (1997). Although defendants make a number of policy-based arguments as

to why the privilege should be applied expansively, we view this issue more as one of legislative

intent regarding the scope of the Act.




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¶ 26   Thus, the question remains as to whether the statutory provisions must give way to the

absolute-litigation privilege. We find sound guidance on this question in an analogous context,

as this question has already been addressed in the context of the common-law privilege enjoyed

by witnesses. In Renzi v. Morrison, 249 Ill. App. 3d 5, 6 (1993), the court considered whether

common-law witness immunity foreclosed a lawsuit under the Act where a witness disclosed

confidential material during a court proceeding. The Renzi court concluded that it did not. Id. at

8. The court observed that the “legislature recognized that the right to witness immunity must be

balanced with the right to privileged communication between doctor and patient.” Id. The

legislature created a cause of action for “any person aggrieved by a violation of [the] Act.” Id.;

see also 740 ILCS 110/15 (West 2016). The court then noted that allowing the privilege to

defeat such an action would make such language a nullity. Renzi, 249 Ill. App. 3d at 8. See also

Mandziara v. Canulli, 299 Ill. App. 3d 593, 598 (1998) (approving of Renzi and noting that

common law “must give way” to the statutory protections of the Act).

¶ 27   Renzi concerned common-law witness immunity while this case concerns the absolute-

litigation privilege. Nevertheless, we perceive no principled way to distinguish Renzi and its

progeny. Whatever can be said about the interplay between the Act and common-law witness

immunity can also be said in the instant context. Accordingly, we hold that the absolute-

litigation privilege provides no shield for a party charged with a violation of the Act.

¶ 28                                    IV. CONCLUSION

¶ 29   In light of the foregoing, we reverse the trial court’s dismissal of count I of plaintiff’s

complaint, and we otherwise affirm. This cause is remanded for further proceedings consistent

with this opinion. Plaintiff raises additional issues regarding the trial court’s application of the




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Act; however, as we read the trial court’s decision, it was based only on the absolute-litigation


privilege. We express no opinion on any issue beyond that. 


¶ 30   Affirmed in part and reversed in part; cause remanded.





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