categories of documents birth generated between november three two thousand and four and may two two thousand and seven two and a half year period the two categories  first documents reflecting communications by lawyers within the say far farm and the firm's general counsel internal communications with firm general coun and the second category communications by seyfarth lawyers with outside retained counsel circuit court judge ruled as to both categories that no attorney client privilege existed for one reason and only one reason because seyfarth continued to represent its quiet peter garvey during that period of time brief with this court that explains in i believe a very persuasive manner why these documents are privileged should privileged why the interests of not just lawyers but clients and the integrity of the judicial process warrant that these documents be privileged nothing in illinois law warranted this decision there are some cases around the country where this kind of issue has percolated essentially the courts have looked to see first whether the communications were the traditional privilege type of confidential communications and they were here these were lawyers seeking advice about purported malpractise claims second the courts then look to see if there's any exception to the privilege some jurisdictions have adopted what they called the fiduciary duty exception to the attorney client privilege the illinois  second district in the mueller case said that's not the law of illinois other courts have adopted a conflict of interest exception which gets you into questions of disclosure and waiver and a third exception that has been referenced only in the appellate court in this case is the crime fraud exception that exception in the circuit sixteen on nov twenty second he said and i quote now we could have gone down the crime fraud exception and be arguing fraudulent concealment there was no need to end of quote that's a one ninety circuit court as i think your honor is no there's no case law in illinois that directly deals with this issue there is no appellate court opinion i find this a little surprising i don't know few too there's no appellate court opinion in the country dealing with this issue there are some federal district court opinions that the parties have discussed in our briefs but most importantly every single case i believe talks about how you need to look at this on a case by case fact basis and the important thing here your honour's that i'd like to take a couple of forty four to forty eight with some attachments here are the facts and i respectfully submit that while some of the general legal principles that are going to be addressing in your opinion are really important to lawyers throughout our community without meaning to be presumptuous i think the easiest way to actually decide this case is by looking at the sworn and contradicted record so here it is in august of two thousand and four after years of bitter fighting among mr garvie and his siblings his siblings advice that the safe arthur law firm had provided to mr garvey and his father so mr garcia and his father ask the safe our firm will you represent us in this case b siblings and the lawyers at seyfarth talk to mr garvey and then on november three two thousand and four send him a very detailed letter setting forth the conflict of interest issues that he needs to consider that latter is at pages two forty nine to two fifty four of the appendix it's a very detailed  it says among other things and i quote it's almost impossible to determine all of the conflicts which may arise from the set of facts there is at least the potential but say far short could be seen as taking positions to favor its own interests over the interests of both of you and then it says and i quote because plaintiffs have made so many allegations relating to the rebel of far straw in this matter we strongly and the word strongly is underlined in the latter we strongly encourage you to seek independent counsel regarding the import of this consent and your rights in this matter it concluded by saying if this is ok with you sign this letter and send it back to us we do not have a record of mr garvey signing the la three letter shift hardened within a month threatens claims of malpractise but asks on behalf of mr garner feet but the same fourth firm continue to represent feet in the sibling litigation that strikes me as you know a little bit unusual it is unusual it's even more unusual your honor that the shift hardened losers for the next year and a mr garvey was requesting demanding insisting that the firm continue to represent him and now and indeed i'm a true two thousand and seven when yes he did end in t d your honor so you understand and i think believe you can probably take judicial notice of the records from the chance reaction from may of two thousand  until i'm sorry november of two thousand and four until may of two thousand and seven very little occurred in that litigation number one the safe fourth lawyers were successful at getting the judge to dismiss  of the complaint including those portions that calls into question safe heart's content and want to there was very limited discovery three seyfarth filed a counterclaim for mr garvie against his siblings and that brought the litigation to a screeching halt to a stay to pursue settlement to sky sions and in response or on his question say five wells talking about withdrawing from the summer of two thousand and six and the the settlement discussion started and the shift hardens lawyers on behalf of mr garvey said please don't withdraw that could disrupt the settlement discussions and so what happened was say fourth agreed to continue to represent mr garvie until the settlement discussions had either succeeded or fa when they failed in april of two thousand and seven seyfarth move to withdraw all over objection the circuit court's dealing with all these facts was to say two things well i've looked at the november three two thousand and four letter and it's possible it's possible that there was something more that's true it's always possible i may be forgetting to say something chew the small warning that i should say it's possible that there is more and second the judge chastised my wonderful colleague mr serino and said well if i were to really rely on this type of letter it would be like asking the movements to grade their papers the reality here is that these types of letters under rule one point seven are written every day to deal with multiple representation issues and all other kinds of potential conflict situations every single day and the reality here is that we and the content six to the rule says and i quote generally a client who is independently represented by other counsel in giving the consent should be  relationship going for the road there is no case that i am aware of in this country where this type of info and consent was disregarded by the courts and where privilege was held not to apply number one number two there also to my knowledge are no cases anywhere in this country circuit court here has said lawyers cannot go can retain outside counsel to deal with these situations so with all due respect we asked that you were first that contempt order reverse the discovery orders but the only rationale that some of the courts get into in terms of conflict of interest where they're talking about in house counsel the conflict analysis is well maybe the in house general counsel should be viewed as part of the firm with duties to the client understood that's not the law in many jurisdictions but here the waiver deals with that number one and number two those courts that talk about this imputed conflict for lawyers within the firm say well but you can always go point they were still representing mr harvey and what might they were not start presenting kirby thank you for asking that the timing is all in the same time period from november three remember the date because it might birthday i was asked was how do you remember the day from november three to five in for until may two or two thousand and seven is the time period for all of these documents and you should know we produced every single piece of paper pre november three two thousand and four there we produced almost two hundred thousand pages of documents to mr garvey and his counsel everything prior to november three two thousand and four and you should also know as you would probably guess from the facts there is no allegation none that anything done by the sa all august of two thousand floor was improper negligence here regular now on the communications from shift kept saying here mr gubb satisfied with the representation he wants you to continue the representation he objected to them withdrawing so unless your honour's have additional questions different types of privilege logs they're involved here in the three different types of documents the first privilege log is involved here is privilege log and one thing i want to make sure that the court is fully aware of because i respectfully suggest you miki weren't aware  this is that neither garvey nor judge pierce is trying to do anything that prevents a lawyer from attaining professional advice concerning that lawyers professional obligations such advice is consistent with the lawyers professional obligations to the lawyers current clients the feeling case that judge pierce relied on is a case that's consistent with that and what we're talking about opinion by the way that cited the materials the reason vet vet policy exists is because both the client in the lawyer are benefiting when the lawyer understands what the lawyers professional obligations are and acts in conformity with those obligations and so in that setting the only information that's required under rule one point four to be disclosed is the conclusion if you reach the point where the conclusion is that the lawyers to somehow breach some obligation to their client nothing else is required to be disclosed concerning that that's not what we're talking about here and there was a word that one at the trial court level concerning whether we could access privileged logs and whether we could delineate what the war was about we accessed those logs the return of six documents six that were generated by the safe for us internal counsel that dealt with say farce own internal discussions concerning fulfilling of its professional obligations judge pierce asked if there were any conclusions because we he wanted us consistent with one for to have those conclusions we were told there were no conclusions that were reached in that and that's where that was left what was compelled here instead two different categories of documents and what's important is it isn't just the documents that were say parsed documents or the documents that were janitors it's only the documents that were known to say for a while seyfarth was peter gar say far and privileged not be at one hundred forty four documents were generated by seyfarth and let's talk about those documents well there's a seizure about whether there's a conflict waiver letter and so if there's a conflict waiver letter on that now i think that the what he relied on primarily is the case law that was generated in connection with sunrise securities and feeling in those cases and i don't think that those are driven by a fiduciary exception per se i think they're dealt with in terms of if they're if there is an ongoing attorney client relationship then there is no privilege as to the client there is no there is no ability to to do that when you get are you urging us to go to you know go down that road well let me let me try to address it a different way let's first deal with it in terms of common representation say five represented itself and it represented mr kerry i think the laws are already there i think the law's there under rule one point seven i think the law's been there in illinois since at least one nine hundred twenty then in a common representation there is no privileges between the parties that are part of that common representation and here what we have is a situation to kind of put it in context let's say say representation in vet setting the communications that i have to say for a never privilege just to mr coleman and his communications with say for the never privilege this to me the privilege just doesn't apply we're not talking about an exception in a common representation setting and in that same situation that's where we are here to say for the head to head obligations to my client in that setting and they never disclose that now one of the things i want to point out is well one point seven  c that was in effect at the time of the representation b n c dealt with the conflicts including the lawyers own self interest and said that when the representation of clients in a single matter is undertaken the disclosure sh that it was engaging in communications that were adverse to him it never disclosed to peter gobby that there were risks of that kind of representation because it was involved in representing its own interest overheads it never disclosed to him that they were perceiving that they had any sort of limitation and the duties of candor were loyalty to him what they disclosed to him in met engagement in that conflict waiver letter that mr coleman discussed is some general information that effectively says there's these charges out there are billing records say we did some work for you when these things we don't really know or all this is going to go so what we're going to try to do is discuss the conflict waivers we want now first we want to disclose it you when your father might have different interests and we want to deal with the waiver there secondly we want to talk about ourselves what to say for say about itself in that setting that says we're first going to come out of the box and we're going to move to dismiss all these things and if we dismiss all of these things then we may not have a so the fact that they're telling him get another lawyer to see whether or not you want to see in the mix well we try to not these cases out while we try to settle them is fine it is not saying you know by the way while we're doing this we're really going to be working at first said you were go that says then a fiduciary can undertake take actions for its own personal interest and simply because it's for its own personal interest they don't have to tell the people that they have a fiduciary obligation to you and that's what they're trying to do here they're trying to have this court fashion some sort of relief that basically says we gotta get outta jail free card lawyers you can go and get your client consent or you can go forward and try to mitigate a problem and if you don't mitigate their problem and then then or threatening to sue them and they're not paying them what you want to get out not are they an easy choice they're all they did was move the trap that wasn't what was going on what was going on is that they were in a situation where there's a push people you about how over that's all it means they have to still be a fiduciary they can't stick can choose when to put the head and when to take the head off regardless of whether they want to get out of the case or they don't make it out of the case now in the context of and garvey to knock out the allegations against very big it doesn't suggest that there is that versus that's going on at that same time between garvey and say fire such that sa from now there was a reference that we haven't gone down the road of crime fraud and that's true let's put that a little bit in setting i had to fight just to get the privilege loves we can get the privilege lives until judges are already willing to compel production of all the documents in that settings the first time we're seeing that they say for it in general for a period of years in some eight hundred documents are basically engaging in the tree work product that if we were going to be talking about some concern here they could be consent able there's nothing in here that would let any consent withstand scrutiny because the consent that went on here made no disclosures concerning the fact that say for directly and through its counsel was going to be engaging in conduct there was a adverse to its current client they can't do that and that's consistent with the feeling case that's consistent with the logic of breaking up be in c it's consistent with the a b a opinion it's consistent with all the federal litigation it's consistent with the law with respect to just general attorney client privilege because how could anyone have an expectation that their communications internally at sa externally with gender would be protected when it did very same time who could protect you from disclosure to guard when at that very same time secret had an unfettered unqualified complete because lawyers who might have some responsibility let's see if we handle the transaction now we're going to have a litigation we may have some responsibility depending upon of a case turns out we might be able to steer the case so that it helps safeguards efforts to engage in confidential communications adverse to its own client while it still represented that its client was never disclosed the gar fact that say fred was engaging in work product in preparation of litigation against darby while it was still representing darby was never disclosed to garvey and the privilege logs demonstrate that that's what was occurring ok you know about it now the reason we know about it now is because they have asserted privilege and asserting that there is an eternal privilege over these communications because it was within their own self interest furthered if the bill with me one second the  it's effectively also admitted by jenner in the reply brief let me see if i can find it in her reply those are the communications that they are unwilling to share with darby them and they're still unwilling to share with garvie now i think i don't think this is a close call your honor your honor so i think what we're talking about here is a fiduciary has in a mall in a common representation has both mr wood for having his obligations as also being mr dr his lawyer and the guardian lawyers that are involved as being garvey's lawyer this argument was framed if you look at page one of the opening brief it was framed that this is an important issue of interest to lawyers in illinois because what we're talking about is you're going to catch your lawyers in a catch twenty two they're either going to have to deal with complaints or throw professional obligations their courage to the benefits the client that benefits the offer there's nothing wrong with that there are allowed also if they want to get legal advice that's adverse to their client now in a setting where you're dealing with in house counsel or else a counsel and you're going to be dealing with things that say we have a problem we need to mitigate and we think we can get a good first of all that's consistent with both interest the firm and the client but in doing that going to be inconsistent with the professional obligations and we ask you to know that here to tell it here to the teachings of the loan it here to the teachings of christ but we're talking about under eleanore law some serious allegations that are not true and that the sworn and contradicted record in this case demonstrates are not true he used words like secret and the sworn uncontroverted to facts of this case are that with in a week of the november three two thousand and four ladder mr garvie hired shift somehow in house counsel or outside counsel were unknown to mr garvie who were doing things that were somehow secretive the farm in november of safe could be seen as taking positions to favorites own interests over the interests of both of you father and son they say that directly to him then he gets his own lawyer his own lawyers communicating malpractise allegations to the firm is this court really seriously going to say that when allegations of malpractise are made against a lawyer that lawyer can not go and have a confidential communication with a partner or a colleague an outside lawyer to try to figure out if their claims are valid or not and to defend against them point number one point number two this is not a common representation this is not like representing two people in the same piece of litigation it is an unusual situation as you noted but that the dual representation here is representing mr godfrey in the chance reaction and then dealing with his new year's threats of malpractise very very different no allegation of wrongdoing we ask in conclusion i again i think the narrow way to deal with this is by looking at the informed consent hearing and independent counsel coming in but for the reasons set forth in the micus brief and in the briefs of the parties we ask your honour's to please render an opinion that makes it clear that lawyers for themselves and for their clients have the ability when threatened with malpractise claims to have confidential communications with lawyers to defend themselves interesting lee i'm after same don't privilege applied here the circuit court said sort of in a backhanded way but i'm going to make an exception you can't claim privilege for communications with your in house lawyers about ethics  but ethics advice that's part of judge pierce's order and that's part of the theme one read type of thinking respectfully the state of illinois should do move work than that to protect lawyers clients and the administration of justice and say yes you can have privileged communications to seek ethical advice and to defend yourself against malpractise claims here the one point seven rule was complied with better than any i can ever imagine it's also important for your honour's to acknowledge that there is no case anywhere in the country or outside counsel could not be sought for advice and we ask that you reverse the contempt and the discovery orders thank you very much for your time we will take it under advisement thank you for your excellent reefing and arguments in this important case