Howell v. Joffe

United States District Court for the Northern District of Illinois · 2007 · Evidence

483 F. Supp. 2d 659 (N.D. Ill. 2007)

Updated August 22, 2026

EvidenceAttorney-client privilegeNegligent infliction of emotional distressFraud pleadingBreach of fiduciary dutyinadvertent disclosurewaiverIllinois privilege law

Facts

Howell alleged that as a child he was sexually abused by priest William Joffe and that in 2004 Ellen Lynch and Monsignor David Kagan contacted him regarding his claim. A voicemail left for Howell contained several messages, including a final portion where, after Lynch intended to end the call, Lynch and Kagan continued speaking and their conversation was recorded. In that conversation they commented on Howell's vocal characteristics, compared him to other abuse claimants, and discussed other claims and litigation involving the Diocese. Defendants submitted affidavits stating that Lynch and Kagan believed the call had ended, were meeting to discuss claims and strategy, and asserted privilege as soon as they learned Howell had the recording.

Issue

Whether the recorded post-message conversation between Lynch and Kagan was protected by attorney-client privilege despite being accidentally left on Howell's voicemail, and whether Howell stated viable claims for intentional or negligent infliction of emotional distress, vicarious liability, breach of fiduciary duty, and fraud. The court also had to determine whether inadvertent disclosure waived any privilege and whether the fraud allegations satisfied Rule 9(b).

Rule

Under Illinois law, attorney-client privilege applies when legal advice is sought from a professional legal adviser in that capacity, the communication relates to that purpose, is made in confidence by the client, remains confidential, and is not waived. The party asserting the privilege must show at minimum that the communication originated in confidence, was made to an attorney in her legal capacity for the purpose of securing legal advice or services, and remained confidential. For inadvertent disclosure, the court predicted Illinois would apply the Dalen balancing test, examining the reasonableness of precautions, the time taken to rectify the error, the scope of discovery, the extent of disclosure, and fairness. A negligent infliction of emotional distress claim requires duty, breach, and proximate causation, and fraud must be pleaded with particularity under Rule 9(b), including the who, what, when, where, and how of the misrepresentation.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Milwaukee, Dana Ortiz, general counsel for Lakeshore Haven, met with operations director Martin Keene to discuss several pending negligence claims. After Dana finished leaving a callback message for a claimant, the phone line stayed open, and Martin said the claimant "sounds like the same profile as the others," prompting Dana to respond with comments comparing the claim to other pending cases and discussing next steps in the litigation.

If the claimant later obtains the recording and seeks to use the post-message exchange, what is the strongest argument that the exchange is privileged under Illinois law as applied by the court?

Explanation. The court held that privilege applies when the communication is made to an attorney in her legal capacity for the purpose of securing legal advice and originated in confidence. It declined to parse a very short exchange into privileged and unprivileged snippets where the conversation's primary purpose was legal consultation about claims. Privilege is not automatic for all attorney communications, does not depend on the recipient's consent, and can cover both attorney and client statements.