The Illinois Supreme Court recently declined to extend the subject matter waiver doctrine to wholly-inapplicable business activities in the case of Center Partners, LTD v. Growth Head GP, LLC. The court’s decision follows guidance outlined in an amicus curiae brief filed by the Association of Corporate Counsel (ACC), a global bar association representing more than 30,000 in-house counsel, and other parties to protect attorney-privilege in business negotiations.
ACC filed the brief in response to a circuit court of Cook County order in the Center Partners case, which required the production of documents that contained privileged attorney-client communications. In the brief, ACC urged the court to correct the court’s decision, which found that the sharing of legal advice with prospective business partners, in some aspects of business transactions resulted in a waiver of privilege protection for all related, confidential information and legal advice.
“Left undisturbed, the appellate court decision threatened to disrupt business negotiations for companies doing business in Illinois,” stated Amar Sarwal, ACC’s vice president and chief legal strategist. “By reversing that erroneous decision, the Illinois Supreme Court reaffirmed the importance of protecting the attorney-client privilege, so that clients can seek legal advice without worrying that those communications will be disclosed inappropriately.”
The court’s decision serves as authority for disclosures made in other non-litigation contexts. “The Illinois Supreme Court's well-reasoned decision thoughtfully lays out the proper boundaries of the subject matter waiver doctrine,” explained Mr. Sarwal. “Any court confronting an assault on the privilege would do well to review this opinion and follow its guidance.”
The ruling, which had only one limitation, provided practical advice to the legal profession on how privileged communications with their clients can be protected.