source: Caselaw Access Project

author: JUSTICE SIMON

license: Public Domain

text:
    (No. 54493.
    BIOGENETICS, LTD., Appellee, v. THE DEPARTMENT OF PUBLIC HEALTH, Appellant.

      Opinion filed February 2, 1982.

      Tyrone C. Fahner, Attorney General, of Springfield (Myra Turner, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Seth A. Eisner, Rosaire M. Nottage, and Michael Sennett, of Chicago (Bell, Boyd and Lloyd, of counsel), for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

The Director of the Department of Public Health (Director) suspended the license of Biogenetics, Ltd., an ambulatory surgical treatment center (ASTC) licensed to perform first-trimester abortions. The suspension for 180 days was based upon several violations of the Ambulatory Surgical Treatment Center Act (Ill. Rev. Stat. 1979, ch. 111½, par. 157—8.1 et seq.) and the rules promulgated thereunder by the Department of Public Health (Department) . Biogenetics sought review under the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 264 et seq.). Although the Cook County circuit court affirmed the Director’s order, the appellate court reversed, holding that if violations did occur, they were not substantial, and therefore did not warrant suspension. (91 Ill. App. 3d 615.) We granted leave to appeal and now affirm the appellate court’s judgment.

Biogenetics’ difficulties began when, amid highly publicized charges in the media of wrongdoing among Chicago abortion clinics, the Director summarily ordered that Bio-genetics be closed and sought a permanent revocation of its ASTC license. Forty-five charges were brought against the clinic. Two of these were dropped, and of the remaining 43, only 15 were sustained by the evidence at the administrative hearing. In part because of this failure of proof, the Director ultimately decided to suspend Biogenetics’ license rather than to revoke it.

The 15 charges stemmed from only three incidents. The Department relies on two of these to justify its suspension, the third one being a relatively minor matter involving the improper completion of statistical forms, which we do not regard as important enough to discuss.

The first incident concerns the employment of Dr. Luis Garcia Ñique, who the Department claims performed five abortions in one morning at Bio genetics at a time he was not licensed. The facts are stipulated. Dr. Ñique was a fully licensed physician in North Dakota at the time in question. Although he had applied for an Illinois license under the reciprocity provision of the Medical Practice Act (Ill. Rev. Stat. 1979, ch. 111, par. 4401 et seq.), he had not yet received word from the Illinois authorities. Dr. Baldoceda, the medical director of Biogenetics, was familiar with Dr. Ñique from their days together in medical school in Peru. They renewed their acquaintance at Cook County Hospital in 1976, and Dr. Baldoceda was brought up to date on Nique’s professional activities. He learned that Ñique had interned at St. Anne’s Hospital and had served an obstetrics-gynecology residency in Youngstown, Ohio, before returning to Illinois for additional residencies. Two years later, Ñique informed Baldoceda that he had become a licensed physician in North Dakota and that he was in the process of applying for an Illinois license under the reciprocity rules. He also told Baldoceda that he would like to do some work at Bio genetics when he received it, and Baldoceda told him he would consider the matter. A few months later, Ñique told Baldoceda that he had received his Illinois license. This was false. Baldoceda invited him to come to work at Bio-genetics.

Dr. Ñique appeared at Biogenetics on October 18,1978, ready to begin work. The nurse in charge first asked him to complete certain forms, list his credentials on a sheet of paper, and supply her with a photocopy of his Illinois license. He gave her, among other things, his A.M.A. number, his affiliation with the University of Illinois Medical Center, and an Illinois license number. He then began work and performed five abortions under the supervision of Dr. Baldoceda. Later that morning, Baldoceda discovered that Ñique had not yet supplied the nurse with a copy of his license, and sent Ñique home to get it. Dr. Ñique has not been heard from at Biogenetics since.

The second incident arose from the employment of Dr. Shaista Khan, an Indian physician educated in Pakistan with extensive experience in obstetrics-gynecology. She received her B. Sc. from Shah Adbul Liateed Government College in Pakistan and then attended F.D. Medical College in Pakistan for five years, receiving her M.D. from that institution. She served residencies in obstetrics-gynecology for four years in Pakistan and conducted approximately 40,000 pelvic examinations during that time. Dr. Khan was not licensed in Illinois or any other State, because she had only recently arrived in this country. She was employed by Biogenetics for five months in the autumn of 1978 while she was preparing to sit for the Illinois licensing examination scheduled for early 1979.

Dr. Khan’s duties at Biogenetics were not those of a physician, however, and she did not identify herself as a doctor to patients while working at Biogenetics. She was allowed to perform only those minor medical procedures that the licensed physicians, after a close scrutiny of her ability, agreed that she was capable of. Dr. Khan administered injections when so directed by a licensed physician, conducted screening pelvic examinations on patients who received negative or inconclusive pregnancy test results, and conducted routine two-week post-operative examinations.

The screening examination was performed to provide a basis for a licensed physician either to confirm the results of the pregnancy test or to make his own independent examination. If Dr. Khan found evidence of pregnancy, she would turn the patient over to a licensed physician to make his own independent examination and evaluation; if she found no such evidence, a licensed physician would confirm the lab report. The patient would be told to return in two weeks for retesting if she then still believed she was pregnant. No surgery was ever performed on the basis of Dr. Khan’s examination. She made no diagnoses; she simply looked for evidence, any shred of evidence, of pregnancy. Her observations were used to assist a licensed physician in making his diagnosis; they gave him extra information to work with. Experts testified that many physicians simply send patients whose tests come out negative or inconclusive home, informing them that the test is somewhat unreliable and that they can return in two weeks if they wish.

On routine two-week post-operative pelvic examinations, she would record specific observations on a chart, and if no evidence of complications existed and the patient had no complaints, a licensed physician would review the chart and make his diagnosis from her observations. Whenever a patient had a complaint or the information recorded by Dr. Khan suggested the possibility of some complication, the doctor who performed the abortion would conduct his own post-operative examination.

None of these activities, when performed under the direct supervision of a licensed physician, constitute the practice of medicine; they are the routine of a physician’s assistant. (See Rules for the Administration of the Physician’s Assistants Practice Act VII, IX.) The Department appears to acknowledge this. It claims, however, that since Dr. Khan was not certified as a physician’s assistant under the Physician’s Assistants Practice Act (Ill. Rev. Stat. 1979, ch. 111, par. 4751 et seq.), Biogenetics was in violation of ASTC Rules 4.2(B), 6.1, and 12.

In addition, the Department contends and the Director found that on one occasion Dr. Khan released a patient after her two-week post-operative exam without first consulting a physician. The hearing officer’s factual findings, upon which the Director’s findings are based, do not specify when or to whom this was done. Moreover, a thorough examination of the record reveals no evidence to establish this contention. Rather, it seems to have arisen from a misunderstanding involving a witness who testified that she was not directly examined by a doctor. We, therefore, will not consider it in evaluating the charges against Biogenetics.

The Ambulatory Surgical Treatment Center Act (Ill. Rev. Stat. 1979, ch. 111½, par. 157—8.7) provides that the Director may, after notice and an opportunity for a hearing, revoke the license of an ASTC if he finds that there has been a substantial failure to comply with the provisions of the Act or the rules promulgated thereunder. This limits the Director’s power. In order for the Department to prevail, therefore, it must prove not only that Biogenetics violated the law, but also that its violations were substantial. See People ex rel. Stephens v. Collins (1966), 35 Ill. 2d 499; Dorfman v. Gerber (1963), 29 Ill. 2d 191.

We examine the case against Bio genetics with regard to the employment of Dr. Shaista Khan first.

Rule 6.1 states, “Sufficient qualified personnel to properly operate the service programs for which the facility is licensed shall be provided.” The major thrust of the rule seems to be aimed at providing the number of qualified employees adequate to maintain the ASTC efficiently. Other rules require that each employee be competent.

Beyond that, however, contrary to the Department’s assertion, the word “qualified” is not synonymous with the word “licensed.” The Department contends that because “qualified physician” is defined under the rules as a licensed physician qualified to perform surgery based on his training and experience and “qualified dentist” is defined similarly, “qualified personnel” as used in Rule 6.1 must be interpreted to mean licensed personnel. The Department overlooks the fact that the ASTC act itself defines “physician” as licensed physician and “dentist” as licensed dentist. If the Act and the rules are to be construed together to form a coherent system of ASTC regulation, “qualified” cannot be interpreted to mean licensed; such an interpretation leaves the term “qualified physician” redundant. “Qualified” should therefore be given its more ordinary meaning: competent. Thus, Rule 6.1 requires the employment of persons who are competent, not who are licensed. While the two characteristics often overlap, they need not.

Dr. Shaista Khan, although not the holder of a physician’s assistant certificate, was qualified for the duties she performed. Even the Department’s own expert witnesses testified that, in view of her training, Khan’s activities were not a danger to the public health, and the Department introduced no evidence whatsoever on the basis of which we could conclude that she was not qualified. In order to receive a physician’s assistant certificate, one need only be a high school graduate and have completed a special course of study or similar experience. Dr. Khan’s training and education were far more extensive than that which a physician’s assistant is required to have, and her employment was therefore not a violation of Rule 6.1.

Rule 4.2(B) is similar. It reads, “Management and/or owner of the ambulatory surgical treatment center shall be responsible for the maintenance of proper standards of professional work in a licensed facility, and shall require the staff to function with reasonable standards of competency.” Like Rule 6.1, this rule appears to focus on competence, not whether the employee is licensed to perform his job, and as with Rule 6.1, it does not prohibit the employment of Dr. Khan. To interpret the rule otherwise would render the rule void on account of vagueness. See Grayned v. City of Rockford (1972), 403 U.S. 104, 33 L. Ed. 2d 222, 92 S. Ct. 2294.

The last charge brought against Biogenetics with respect to Dr. Khan was for violation of Rule 12. That rule states, “Abortion is a health service and, as such, it should be provided to the public with the same standards of safety, effectiveness, and regard for patient’s rights as any other health service.” This type of charge cannot stand alone; the rule merely states that clinics performing abortions are subject to the same rules and standards as any other ASTC. It is not a separate violation in itself, and therefore it too must be removed from consideration.

We do not reach the question of whether the employment of Dr. Khan in the capacity of a physician’s assistant could have given rise to a different violation of the ASTC regulatory scheme, such as a violation of Rule 1.1, which possibly could have been charged in conjunction with the Physician’s Assistants Practice Act. That act requires the certification of physician’s assistants, and Rule 1.1 makes ASTCs subject to all State and Federal law regarding medical treatment. Biogenetics was not charged with violating this rule, however. Biogenetics’ actions did not constitute a violation of the rules the Department charged.

That leaves the incident involving Dr. Ñique. The Director found Biogenetics guilty of four violations of the ASTC act and rules for allowing an unlicensed doctor to perform abortions. Biogenetics argues that the incident was not a violation of the law at all because Ñique, although not formally licensed, was permitted to practice medicine under a temporary grant of privilege under the Medical Practice Act for doctors already licensed in other States (Ill. Rev. Stat. 1979, ch. 111, par. 4407). The Department argues that Ñique had not yet qualified for this special privilege and that even if he did, it does not confer the privilege to practice medicine in an ASTC, because the ASTC act defines the word “physician” as a physician licensed to practice in Illinois.

This court need not, however, decide that question, since, in order for the Department to suspend the license of an ASTC, the violation found must be substantial. The Department argues that the requirement that all physicians be licensed is the cornerstone of the Act, and thus any violation of it must be considered substantial. Under this view, any situation in which a physician practiced medicine without a valid Illinois license would constitute a substantial violation no matter how technical or insignificant the reason.

We do not agree with the Department’s analysis. Although the word “substantial” is difficult to define precisely, we believe that it does not apply to the violations found in relation to the Ñique incident. The centrality of the violated rule to the statutory scheme is, of course, very important to consider in evaluating substantiality, but it is not the only thing. One must also consider, inter alia, the duration of the violation, the number of occasions on which it occurred, whether it was wilful, whether it was the result of negligence, whether any actual harm resulted from it or could have resulted from it, the likelihood of reoccurrence, and the need to discourage others from acting similarly.

The staff members at Biogenetics were completely unaware that they were being duped by Dr. Ñique. Moreover, it is not at all clear they were negligent in being so. An uncontradicted expert witness admitted that he probably would also have been temporarily deceived under the peculiar circumstances of the case. After all, Dr. Baldoceda was well acquainted with Ñique and his background. It is to his credit that he insisted that Ñique leave the clinic in the middle of the day to get his license when he discovered that it had not been supplied rather than permitting him to continue to work.

No harm resulted from the error, nor was any likely to. The Department admitted that Dr. Ñique was fully qualified to hold an Illinois license and thus perform abortions. Furthermore, the peculiar error that occurred here is not the sort that could occur with a person not known to be qualified to receive a license; more care would be taken with complete strangers. The Department asserts, however, that the very purpose of medical licensing requirements is to take the right to decide who is qualified away from hospitals, clinics, patients, and the doctors themselves, all of whom may be biased, under pressure, or lacking in information and the ability to obtain it. They contend that even the most clearly qualified physicians should not be allowed to practice without a license, because to do so would encourage those less clearly qualified but who believe themselves to be similarly qualified to practice also. This we concede. It has little bearing on this case, however, since the staff members at Biogenetics were unaware that Ñique was unlicensed and were not shown to be negligent in being unaware. They did not purposely ignore the licensing law and make their own determination of Nique’s competence. There is thus no danger that others will use Biogenetics’ example as an excuse to evade the licensing laws.

Biogenetics has since tightened its procedures to prevent such mistakes from occurring again. Under the procedures now followed, no doctor, no matter how well known he is to the staff, would be allowed to practice medicine at Biogenetics without first presenting a copy of his Illinois license.

To suspend Biogenetics’ license for being deceived by Dr. Ñique is an unnecessary and undeserved punishment for a technical violation, one which the assistant Attorney General conceded in oral argument before this court was a case in which “they should have just been more careful.” See People ex rel. Stephens v. Collins (1966), 35 Ill. 2d 499; Dorfman v. Gerber (1963), 29 Ill. 2d 191.

We agree with the appellate court’s conclusion that if the Ñique incident did constitute a violation, it was not, in the language of the statute, “substantial,” and we therefore affirm the appellate court’s judgment.

Judgment affirmed.


author: JUSTICE UNDERWOOD

text:
    (No. 54752.
    CONSOLIDATION COAL COMPANY, Appellee, v. BUCYRUS-ERIE COMPANY, Appellant.

      Opinion filed February 2, 1982.

      SIMON, J., took no part.

      Lord, Bissell & Brook, of Chicago (Richard E. Mueller and Hugh C. Griffin, of counsel), for appellant.
    Sidley & Austin, of Chicago (Robert A. Downing and Arlene C. Erlebacher, of counsel) and Robins, Zelle, Larson & Kaplan, of Minneapolis (Lawrence Zelle and James D. Steiner, of counsel), for appellee.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

Plaintiff, Consolidation Coal Company (Consolidation), brought this action in the circuit court of Cook County on January 18, 1977, to recover damages allegedly sustained on August 7, 1973, when its wheel excavator collapsed at its Pinckneyville, Illinois, coal mine. The excavator was designed, manufactured and repaired for Consolidation by defendant, Bucyrus-Erie (B-E), a Delaware corporation, licensed to do business in Illinois with its principal place of business and corporate headquarters in Wisconsin. Its attorneys are licensed to practice law in Illinois and Wisconsin. During the course of pretrial discovery, B-E refused to comply with the trial court’s orders, and its attorney was held in contempt of court and fined $50. The appellate court affirmed the discovery rulings with some modification (93 Ill. App. 3d 35), and we allowed B-E’s petition for leave to appeal to consider the scope of the attorney-client and work-product privileges in Illinois.

Consolidation commenced discovery in May of 1977 by filing a production request for all of B-E’s documents relating to the design, manufacture, erection, and repair of the wheel excavator and all documents relating to the investigation of the excavator’s collapse or otherwise relating to the facts in controversy, including memoranda, notes, correspondence, reports, statements, interviews, photographs, slides, films, recordings, tapes, micrographs, and metallurgical test data. B-E produced thousands of documents for inspection, but, invoking the attorney-client and work-product privileges, refused to produce a “metallurgical report” prepared by its employee, Richard Sailors, a report prepared by Tom Learmont, its director of engineering and mining machinery, and memoranda and notes of interviews with various B-E employees prepared by its in-house counsel. Following several hearings pursuant to Consolidation’s motion to compel compliance, extensive briefings by the parties and an in camera inspection of the contested documents, the trial court ordered B-E to provide all of the documents in question, with the exception of certain deleted portions which it ruled constituted “work product” and the “Learmont Report,” which the court ruled was exempt from discovery under the attorney-client privilege. No question is now raised regarding the trial court’s ruling on the privileged status of the “Learmont Report.”

The appellate court considered the _ attorney-client privilege inapplicable because there was no allegation by B-E that the disputed documents were received from members of B-E’s “control group.” It further held that neither Sailors’ metallurgical report nor the bulk of B-E’s attorney’s notes constituted work product. It found that Sailors’ report contains objective and material information that does not reflect or disclose B-E’s attorneys’ mental impressions, theories or litigation plans and modified the trial court’s order to the extent that no deletions were necessary. Similarly, the court found that the attorneys’ notes, with minor exceptions, contain factual information submitted by B-E’s employees and do not reveal the attorneys’ mental processes in shaping litigation strategy.

In both the trial and appellate courts, B-E argued that the law of Wisconsin should govern the scope of the attorney-client and work-product privileges. The appellate court followed the “most significant relationship test” of the Restatement (Second) of Conflicts of Laws, section 139 (1971), and affirmed the trial court, holding that the Illinois policy favoring discoverability was not outweighed by Wisconsin’s contrary approach and Illinois law would therefore apply. B-E has apparently abandoned the conflicts issue in this court, since the question wais neither raised in its petition for leave to appeal nor argued in its supplemental brief. Although B-E asserts that the documents are privileged under either Wisconsin or Illinois law, and its brief contains a citation of Wisconsin authorities supporting this proposition, its brief contains no discussion, argument or authority concerning the applicable law. Thus, if the conflicts issue has not been abandoned, it has been waived. (73 Ill. 2d R. 341(e).) We thus proceed to consider the privilege claims under Illinois law. B-E contends that the attorneys’ notes and memoranda and Sailors’ metallurgical report are protected under both the work-product doctrine and the attorney-client privilege.

The work-product doctrine in Illinois, which protects against disclosure of “the theories, mental impressions, or litigation plans of [a] party’s attorney” (73 Ill. 2d R. 201(b)(2)), is believed necessary to prevent complete invasion of counsel’s files. (Monier v. Chamberlain (1966), 35 Ill. 2d 351, 359; Stimpert v. Abdnour (1962), 24 Ill. 2d 26, 31.) In the Federal courts, this material, generally referred to by commentators as “opinion” work-product (see, e.g., Comment, Discovery and the Work Product Doctrine, 11 Loy. Chi. L.J. 863, 873 (1980)), is discoverable, if at all, only under “rare” circumstances (Hickman v. Taylor (1947), 329 U.S. 495, 513-14, 91 L. Ed. 451, 463-64, 67 S. Ct. 385, 394-95; see also Upjohn Co. v. United States (1981), 449 U.S. 383, 399-400, 66 L. Ed. 2d 584, 597-98, 101 S. Ct. 677, 687-88; United States v. Nobles (1975), 422 U.S. 225, 244-45, 45 L. Ed. 2d 141, 157, 95 S. Ct. 2160, 2173 (White, J., concurring)), because it is thought that requiring disclosure of an attorney’s strategies, legal theories and mental impressions would result in inefficiency, unfairness and sharp practices which would ultimately have a “demoralizing” effect on the legal profession (Hickman v. Taylor (1947), 329 U.S. 495, 511, 91 L. Ed. 451, 462, 67 S. Ct. 385, 394).

In Monier, we distinguished between memoranda made by counsel of his impression of a prospective witness and verbatim statements of such witness in an attempt to clarify the work-product doctrine in Illinois. We consider today whether counsel’s notes and memoranda of employees or witnesses’ oral statements which are not verbatim and are not reviewed, altered, corrected, or signed by these individuals are protected work-product. While our rule differs significantly from the more broadly protective Federal rule (see generally Johnston, Discovery in Illinois and Federal Courts, 2 J. Mar. J. Prac. & Proc. 22 (1968)), we agree with the Supreme Court that notes regarding oral statements of witnesses, whether in the form of attorney’s mental impressions or memoranda, necessarily reveal in varying degrees the attorney’s mental processes in evaluating the communications. See Upjohn Co. v. United States (1981), 449 U.S. 383, 399-400, 66 L. Ed. 2d 584, 597-98, 101 S. Ct. 677, 687-88, citing Hickman v. Taylor (1947), 329 U.S. 495, 91 L. Ed. 451, 67 S. Ct. 385 (“what he saw fit to write down regarding witnesses’ remarks”; “the statement would be his [the attorney’s] language, permeated with his inferences”); see also In re Grand Jury Investigation (E.D. Pa. 1976), 412 F. Supp. 943, 949 (notes of conversation with witnesses “are so much a product of the lawyer’s thinking and so little probative of the witnesses’ actual words”).

Some of the disputed documents prepared by B-E’s attorneys in this case are handwritten; others are typewritten in the form of memoranda. In our in camera inspection, it was evident that the typewritten documents, which were reduced to succinct and concise form, represent the attorneys’ efforts in reviewing, analyzing and summarizing the portion of the communications with potential witnesses which the attorneys believed important in developing their theories of their client’s cause. As such, they necessarily “ ‘reveal the shaping process by which the attorney [s] [have] arranged the available evidence for use in trial as dictated by [their] training and experience’ ” (Monier v. Chamberlain (1966), 35 Ill. 2d 351, 359) and are therefore entitled to protection. The handwritten notes represent a mixture of factual material and counsel’s work product in the form of his conclusions, characterizations and summaries. Concededly, some of the factual material may be relevant to the issues. In many instances, however, this material is so inextricably intertwined with the privileged material that its isolation is virtually impossible. To impose upon the trial bench of this State the burden of reviewing voluminous material of this character would be totally incompatible with the efficient disposition of litigation. Moreover, and more importantly perhaps, such a procedure would violate the spirit of Monier and our discovery procedures which contemplate that discovery generally proceed without judicial intervention. (Williams v. A. E. Staley Manufacturing Co. (1981), 83 Ill. 2d 559, 564.) It would only serve to “increase the burden of already crowded court calendars, and thwart the efficient and expeditious administration of justice” which Monier sought to prevent. (Monier v. Chamberlain (1966), 35 Ill. 2d 351, 357.) Accordingly we hold that attorneys’ notes and memoranda of oral conversations with witnesses or employees are not routinely discoverable. However, because of the possibility that such notes and memoranda may, on rare occasions, constitute the only source of factual material, we believe that an exception must be made from the absolute work-product exemption. We are cognizant of the difficulty and conflict which may arise in applying any exception, which, of course, led us to reject the Federal good-cause doctrine in Monier. Nonetheless, we believe that a narrowly limited exception must be made and defined to permit access to such material in those rare instances. Since the exception will rarely be operable, conflicts should be minimal. We therefore hold that the attorney’s notes or memoranda are discoverable only if the party seeking disclosure conclusively demonstrates the absolute impossibility of securing similar information from other sources.

There is nothing in this record to indicate any necessity that would lead us to hold the exception applicable here. Indeed, according to the affidavit of one of Consolidation’s attorneys, B-E has made available for inspection “engineering records, design calculations, material specifications, correspondence and notes estimated to include tens of thousands of individual documents.” In short, there is nothing which indicates that Consolidation does not already have or cannot obtain through its attorneys’ efforts and depositions the same factual information that is now included in the form of B-E’s attorneys’ work product.

We do not believe, however, that Sailors’ metallurgical report can fairly be characterized as B-E’s attorney’s work product. As the appellate court noted, the report is actually a notebook that contains objective and material information consisting of mathematical computations, formulae, tables, drawings, photographs, industry specification data, and handwritten notes. It does not reflect or disclose the theories, mental impressions or litigation plans of B-E’s attorneys. Nor is it the product of the attorneys’ mental processes. Sailors never communicated with the legal department prior to preparing this material, nor was he advised by his superior, who had requested Sailors’ help, as to what the theories or plans of the attorneys were relative to this litigation. He was simply asked to analyze pieces of the machinery and render an opinion as to what had occurred. When his report was transferred to the legal department some six months to a year after it had been made, it did not, as B-E argues, thereby become part of the attorneys’ thought processes. It is therefore not entitled to protection under the work-product doctrine. (See generally Johnston, Discovery in Illinois and Federal Courts, 2 J. Mar. J. Prac. & Proc. 22, 48-51 (1968) (examining the possibility that an expert’s report may constitute work product as defined in Monier).) Nor is it, in our judgment, exempt from discovery under the attorney-client privilege.

The question of who speaks for a corporation on a privileged basis has created considerable confusion and conflict in the Federal system and has frequently been the subject of law review commentaries. (E.g., Burnham, Confidentiality and the Corporate Lawyer: The Attorney-Client Privilege and “Work Product” in Illinois, 56 Ill. B.J. 542 (1968); Weinschel, Corporate Employee Interviews and the Attorney-Client Privilege, 12 B.C. Ind. & Comm. L. Rev. 873 (1970); Note, Attorney-Client Privilege for Corporate Clients: The Control Group Test, 84 Harv. L. Rev. 424 (1970); Note, Upjohn Co. v. United States: Death Knell for the Control Group Test and a Plea for a Policy-Oriented Standard to Corporate Discovery, 31 Syracuse L. Rev. 1043 (1980).) B-E urges that we abandon the “control group” test first adopted in Illinois by the appellate court in Day v. Illinois Power Co. (1964), 50 Ill. App. 2d 52, as a means of defining “client” in the corporate context. (See also Johnson v. Frontier Ford, Inc. (1979), 68 Ill. App. 3d 315, 319; Shere v. Marshall Field & Co. (1974), 26 Ill. App. 3d 728, 731-32; Golminas v. Teitelbaum Construction Co. (1969), 112 Ill. App. 2d 445, 449.) This test was recently rejected by the Supreme Court as the governing test in the Federal courts. Upjohn Co. v. United States (1981), 449 U.S. 383, 66 L. Ed. 2d 584, 101 S. Ct. 677.

In Cox v. Yellow Cab Co. (1975), 61 Ill. 2d 416, this court indicated that there are many factors relevant to a determination whether a statement given by a corporate employee is protected by the attorney-client privilege, including “the purpose for which the statement was required, the understanding by its maker as to that purpose, the extent to which its confidentiality was maintained after it was made and in the course of its transmission to counsel, and others.” (61 Ill. 2d 416, 420.) While listing some of the requirements essential to assertion of the privilege, the court declined to articulate a particular test and expressed no opinion on the appellate court’s application of the control-group test since there were insufficient facts in the record from which the existence of the privilege could be ascertained.

In the Federal system prior to Upjohn, three major tests had emerged. The most widely adopted control-group test was first announced in City of Philadelphia v. Westinghouse Electric Corp. (E.D. Pa. 1962), 210 F. Supp. 483, petition for writ of mandamus or prohibition denied sub nom. General Electric Co. v. Kirkpatrick (3d Cir. 1962), 312 F.2d 742, cert. denied (1963), 372 U.S. 943, 9 L. Ed. 2d 969, 83 S. Ct. 937, at a time when one Federal court had held that the attorney-client privilege was not available to corporations (Radiant Burners, Inc. v. American Gas Association (N.D. Ill. 1962), 207 F. Supp. 771, aff’d on reconsideration (N.D. Ill. 1962), 209 F. Supp. 321, rev'd (7th Cir. 1963) (en banc), 320 F.2d 314, cert. denied (1963), 375 U.S. 929, 11 L. Ed. 2d 262, 84 S.Ct. 330).

This test focuses on the status of the employee within the corporate hierarchy:

“ [I] f the employee making the communication, of whatever rank he may be, is in a position to control or even to take a substantial part in a decision about any action which the corporation may take upon the advice of the attorney, or if he is an authorized member of a body or group which has that authority, then, in effect, he is (or personifies) the corporation when he makes his disclosure to the lawyer and the privilege would apply. In all other cases the employee would be merely giving information to the lawyer to enable the latter to advise those in the corporation having the authority to act or refrain from acting on the advice.” (City of Philadelphia v. Westinghouse Electric Corp. (E.D. Pa. 1962), 210 F. Supp. 483, 485.)

This approach was subsequently followed by the Third, Sixth and Tenth Circuits (In re Grand Jury Investigation (3d Cir. 1979), 599 F.2d 1224; United States v. Upjohn Co. (6th Cir. 1979), 600 F.2d 1223, rev’d (1981), 449 U.S. 383, 66 L. Ed. 2d 584, 101 S. Ct. 677; Natta v. Hogan (10th Cir. 1968), 392 F.2d 686), as well as several district courts outside those circuits (e.g., Virginia Electric & Power Co. v. Sun Shipbuilding & Dry Dock Co. (E.D. Va. 1975), 68 F.R.D. 397; Burlington Industries v. Exxon Corp. (D. Md. 1974), 65 F.R.D. 26; Garrison v. General Motors Corp. (S.D. Cal. 1963), 213 F. Supp. 515; see also Annot., 9 A.L.R. Fed. 685 (1971).) In addition, several States have incorporated this test in their rules of evidence. See Stern, Attorney-Client Privilege: Supreme Court Repudiates the Control Group Test, 67 A.B.A.J. 1142, 1144 n.4 (1981).

The Seventh Circuit, in Harper & Row Publishers, Inc. v. Decker (7th Cir. 1970), 423 F.2d 487, aff’d by an equally divided court (1971), 400 U.S. 348, 27 L. Ed. 2d 433, 91 S. Ct. 479, adopted a broader approach for determining when a corporation could claim the attorney-chent privilege. The Harper & Row test, sometimes referred to as the “subject matter” or “scope of employment” test, is said to focus on why an attorney was consulted rather than with whom he communicated. (See Diversified Industries, Inc. v. Meredith (8th Cir. 1977), 572 F.2d 596, 609; see also Note, Attorney-Client Privilege-Under the Newly Adopted Weinstein Subject Matter Test (1979), 28 Drake L. Rev. 191.) Under the Harper & Row test, “an employee of a corporation, though not a member of its control group, is sufficiently identified with the corporation so that his communication to the corporation’s attorney is privileged where the employee makes the communication at the direction of his superiors in the corporation and where the subject matter upon which the attorney’s advice is sought by the corporation and dealt with in the communication is the performance by the employee of the duties of his employment.” 423 F.2d 487, 491-92. See also Hasso v. Retail Credit Co. (E.D. Pa. 1973), 58 F.R.D. 425; cf. Duplan Corp. v. Deering Milliken, Inc. (D.S.C. 1974), 397 F. Supp. 1146 (approach combining both Harper & Row and an expanded control-group test).

Finally, the Eighth Circuit, in Diversified Industries, Inc. v. Meredith (8th Cir. 1977) (en banc), 572 F.2d 596, responding to one of the criticisms of the subject matter test — that a corporation could protect much information by simply directing all their employees to channel business reports to corporate attorneys — announced a modified version of the Harper & Row test:

“[T] he attorney-client privilege is applicable to an employee’s communication if (1) the communication was made for the purpose of securing legal advice; (2) the employee making the communication did so at the direction of his corporate superior; (3) the superior made the request so that the corporation could secure legal advice; (4) the subject matter of the communication is within the scope of the employee’s corporate duties; and (5) the communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents.” (572 F.2d 596, 609.)

Under this modified subject matter approach, any communication in which the employee functioned merely as a “fortuitous” or “bystander” witness would not be privileged. The Harper & Row court had implicitly recognized this same limitation.

All of the above tests have been criticized and additional tests have been proposed. (E.g., D.I. Chadbourne, Inc. v. Superior Court (1964), 60 Cal. 2d 723, 388 P.2d 700, 36 Cal. Rptr. 468 (11 “basic principles” should be considered); In re Ampicillin Antitrust Litigation (D.D.C. 1978), 81 F.R.D. 377, 387 (neither control-group nor Harper & Row test is sufficient; focus should be subject matter of communication and context in which it is made); Duplan Corp. v. Deering Milliken, Inc. (D.S.C. 1974), 397 F. Supp. 1146 (subject matter test a necessary corollary of control-group test; scope of control-group test expanded); United States v. United Shoe Machinery Corp. (D. Mass. 1950), 89 F. Supp. 357 (unlimited approach-all communications furnished to the attorney “by an officer or employee” of the corporation in confidence are privileged); Simon, The Attorney-Client Privilege as Applied to Corporations, 65 Yale L.J. 953 (1956) (test classifying corporate employees as “managing agents,” “communicating agents,” and “source agents”); Note, Evidence — Privileged Communications — The Attorney-Client Privilege in the Corporate Setting: A Suggested Approach, 69 Mich. L. Rev. 360 (1970) (“natural or appropriate person” approach); Comment, The Privileged Few: The Attorney-Client Privilege as Applied to Corporations, 20 U.C.L.A. L. Rev. 288 (1972) (an expanded control-group test — communications of employee privileged if he had the ability to direct or take substantial part in directing corporation’s business policy).) The broader tests have been criticized as shielding too much relevant information from discovery, whereas the principal criticism of the control-group test is that it frustrates the purpose of the attorney-client privilege by failing to take into account modern “corporate realities.” (See Upjohn Co. v. United States (1981), 449 U.S. 383, 66 L. Ed. 2d 584, 101 S. Ct. 677, Diversified Industries, Inc. v. Meredith (8th Cir. 1978) (en banc), 572 F.2d 596.) While the Supreme Court rejected this test as inadequate, it declined to articulate an alternative standard to govern future cases in the Federal courts.

Whether a narrow or broad test should prevail depends, it seems to us, on the value to be accorded the two competing policies. As Justice Cardozo once remarked concerning the attorney-client privilege in another context:

“[T] he recognition of a privilege does not mean that it is without conditions or exceptions. The social policy that will prevail in many situations may run foul in others of a different social policy, competing for supremacy. It is then the function of a court to mediate between them, assigning, so far as possible, a proper value to each, and summoning to its aid all the distinctions and analogies that are the tools of the judicial process. The function is the more essential where a privilege has its origin in inveterate but vague tradition, and where no attempt has been made either in treatise or in decisions to chart its limits with precision.” Clark v. United States (1933), 289 U.S. 1, 13, 77 L. Ed. 993, 999, 53 S. Ct. 465, 469.

The purpose of the attorney-client privilege is to encourage and promote full and frank consultation between a client and legal advisor by removing the fear of compelled disclosure of information. (See 8 Wigmore, Evidence sec. 2291 (rev. ed. 1961); see also People v. Adam (1972), 51 Ill. 2d 46, 48 (citing Wigmore’s list of the essentials for the creation and continued existence of the privilege).) Under some circumstances, however, the privilege poses an absolute bar to the discovery of relevant and material evidentiary facts, and in the corporate context, given the large number of employees, frequent dealings with lawyers and masses of documents, the “zone of silence grows large.” (Simon, The Attorney-Client Privilege as Applied to Corporations, 65 Yale L.J. 953, 955 (1956).) That result, in our judgment, is fundamentally incompatible with this State’s broad discovery policies looking to the ultimate ascertainment of the truth (Monier v. Chamberlain (1966), 35 Ill. 2d 351; see also Williams v. A. E. Staley Manufacturing Co. (1981), 83 Ill. 2d 559, 565; Sarver v. Barrett Ace Hardware, Inc. (1976), 63 Ill. 2d 454, 459-60), which we continue to find essential to the fair disposition of a lawsuit. (See Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273.) Its potential to insulate so much material from the truth-seeking process convinces us that the privilege ought to be limited for the corporate client to the extent reasonably necessary to achieve its purpose. As Dean Wigmore admonished:

“[T] he privilege remains an exception to the general duty to disclose. Its benefits are all indirect and speculative; its obstruction is plain and concrete ***. It is worth preserving for the sake of a general policy, but it is nonetheless an obstacle to the investigation of the truth. It ought to be strictly confined within the narrowest possible limits consistent with the logic of its principle.” (8 Wigmore, Evidence sec. 2291, at 554 (rev. ed. 1961).)

The control-group test appears to us to strike a reasonable balance by protecting consultations with counsel by those who are the decisionmakers or who substantially influence corporate decisions and by minimizing the amount of relevant factual material which is immune from discovery. We note, too, that the burden of showing facts which give rise to the privilege rests on the one who claims the exemption. (Cox v. Yellow Cab Co. (1975), 61 Ill. 2d 416, 419-20; Krupp v. Chicago Transit Authority (1956), 8 Ill. 2d 37, 42.) Moreover, the claimant must show certain threshold requirements in order to avail itself of the privilege, including a showing that the communication originated in a confidence that it would not be disclosed, was made to an attorney acting in his legal capacity for the purpose of securing legal advice or services, and remained confidential. (See 8 Wigmore, Evidence sec. 2292 (rev. ed. 1961); United States v. United Shoe Machinery Corp. (D. Mass. 1950), 89 F. Supp. 357, 358-59.) Although the control-group test has been noted for its predictability and ease of application, we believe it is necessary to elaborate on those individuals whom we believe should be considered as members of the corporate control group.

In many of the cases in which the control-group test was adopted, the party claiming the privilege either presented no evidence which indicated that the particular employee had any actual authority to make a judgment or decision (e.g., Golminas v. Teitelbaum Construction Co. (1969), 112 Ill. App. 2d 445, 449; Day v. Illinois Power Co. (1964), 50 Ill. App. 2d 52, 59) or, as in the present case, conceded that none of the employees whose statements were alleged to be privileged were a part of their control group. (See, e.g., In re Grand Jury Investigation (3d Cir. 1979), 599 F.2d 1224, 1237.) Some courts have indicated that the labels or titles of the employees are not determinative; rather, the actual duties or responsibilities delegated to these individuals determine their status as decisionmakers. (See Congoleum Industries, Inc. v. GAF Corp. (E.D. Pa. 1969), 49 F.R.D. 82, 85, aff’d (3d Cir. 1973), 478 F.2d 1398; see also Honeywell, Inc. v. Piper Aircraft Corp. (M.D. Pa. 1970), 50 F.R.D. 117, 120 (“persons in management may range from the lowest junior executive or executive trainee to the chairman of the board”).) Nevertheless, as a practical matter, the only communications that are ordinarily held privileged under this test are those made by top management who have the ability to make a final decision (see United States v. Upjohn Co. (6th Cir. 1979), 600 F.2d 1223, rev’d (1981), 449 U.S. 383, 66 L. Ed. 2d 584, 101 S. Ct. 677), rather than those made by employees whose positions are merely advisory (Congoleum Industries, Inc. v. GAF Corp. (E.D. Pa. 1969), 49 F.R.D. 82, 85). We believe that an employee whose advisory role to top management in a particular area is such that a decision would not normally be made without his advice or opinion, and whose opinion in fact forms the basis of any final decision by those with actual authority, is properly within the control group. However, the individuals upon whom he may rely for supplying information are not members of the control group. Thus, if an employee of the status described is consulted for the purpose of determining what legal action the corporation will pursue, his communication is protected from disclosure. This approach, we think, better accommodates modem corporate realities and recognizes that decision-making within a corporation is a process rather than a final act. See Note, Attorney-Client Privilege for Corporate Clients: The Control Group Test, 84 Harv. L. Rev. 424, 430.

While B-E has conceded that Richard Sailors was not a member of its control group in the usual sense, we must consider whether he qualifies for that group as we have defined it. The record indicates that he began employment with B-E in April 1974, several months after the accident from which this litigation arose. From 1974 through June 1977, he was materials development engineer and reported directly to the chief engineer; in 1977, he was appointed chief standards engineer, a position he held until August 1980, when he left B-E’s employ. According to his affidavit, his duties included “(a) developing and specifying material standards to insure the production of mining and construction machinery of uniform quality; (b) providing technical assistance to the [B-E] engineering departments engaged in the metallurgical and welding aspects of the manufacture of said mining and construction machinery; (c)- developing new materials (metals) as required to suit new machine models and applications; (d) conducting tests on and analyzing machinery materials which failed to function properly; and (f) recommending corrective action to remedy material malfunction or failure.”

In October 1976, he was contacted by a superior and asked to examine pieces of the machine in question which were in B-E’s possession and render an opinion. There is a conflict in the record as to which superior contacted him. B-E’s attorney’s affidavit indicated that Lennart Hansson, who was B-E’s engineer in charge of overseeing technical aspects of litigation involving mining machinery, requested Sailors’ assistance; Sailors stated in his deposition that he was contacted by Tom Learmont, B-E’s director of engineering-mining machinery whose responsibilities included supervising several chief engineers. In our judgment, it is clear that Sailors was not a member of B-E’s corporate control group. As one of several engineers within his department, he supplied information to those whose opinions were sought and relied upon by others such as Hans-son who occupied an advisory role and substantially contributed to decisionmaking. It is this fact which is critical, for it seems clear that Sailors’ role was one of supplying the factual bases upon which were predicated the opinions and recommendations of those who advised the decision-makers. While those who directly advise the decision-makers could, conceivably, come within the control group, it is evident that Sailors did not.

Accordingly, we hold that Sailors* report is not privileged and must be made available to Consolidation for inspection. The notes and memoranda of B-E’s attorneys are exempt from discovery under the work-product doctrine as expressed in this opinion.

Since the attorneys* notes and memoranda are not discoverable, and the question concerning the discover-ability of Sailors* report involved issues of first impression in this court, the circuit court’s order imposing a fine on B-E’s attorney for contempt of court will be set aside. See Sarver v. Barrett Ace Hardware, Inc. (1976), 63 Ill. 2d 454, 462.

The judgments of the appellate and circuit courts are vacated, and the cause is remanded to the circuit court of Cook County for further proceedings consistent with this opinion.

Vacated and remanded.

JUSTICE SIMON took no part in the consideration or decision of this case.


author: JUSTICE WARD

text:
    (No. 54481.
    ELIZA PHILLIPS, Adm’r, Appellee, v. THE CHICAGO HOUSING AUTHORITY, Appellant.

      Opinion filed February 2, 1982.

      Omer, Wasserman & Moore, Ltd., of Chicago (Norton Wasserman and H. Elisabeth Huber, of counsel), for appellant.
    Epton, Mullin, Segal & Druth, Ltd., of Chicago (Edward J. McCambridge and Mary F. Stafford, of counsel), for appellee.
   JUSTICE WARD

delivered the opinion of the court:

This appeal is from a negligence action brought in the circuit court of Cook County for the wrongful death and personal injuries of plaintiff’s decedent, a resident of a housing project operated by the defendant, the Chicago Housing Authority (CHA). The circuit court struck the complaint for failure to state a cause of action and also three successive amended complaints. Upon striking the third amended complaint, the court dismissed the case with prejudice. The appellate court concluded that a cause of action was stated and reversed and remanded for further proceedings. (91 Ill. App. 3d 544.) We granted the CHA’s petition for leave to appeal.

The plaintiff’s third amended complaint alleged:

“1. The plaintiff’s decedent, DEBRA PHILLIPS, was a minor who resided at 1119 North Cleveland Street, which is located in the Cabrini Green Housing Project in Chicago.
2. Cabrini Green is a public housing development of approximately 78 buildings, owned, operated, maintained and controlled by the CHA.
3. At the time of Debra’s death and for a long time prior thereto numerous incidents of crimes of extreme violence had taken place on the premises in question in the possession and control of the defendant. The offenses included criminal homicides, aggravated assaults, and rapes of adults and minors. The crimes were committed against tenants, their families, and their invitees and licensees. In particular, crimes of rape of female minors had taken place in the areas which later were secured or locked by the defendant as described hereafter in paragraph 5.
4. At all times concerned, the defendant knew or by exercise of due care and caution should have known of the existence of these crimes.
5. At some time prior to April 2, 1977, the CHA closed and locked off certain floors of the aforementioned building to prevent criminals, of whom they knew or in the exercise of due care and caution should have known, from entering these floors to conduct criminal activities and to keep the premises safe for the tenants of the building.
6. On April 2, 1977, Debra was abducted by persons unknown and violently assaulted and raped and taken to and beaten on one of the allegedly secured floors and was thrown out a window on that floor, causing her death.
7. At that time and place the CHA negligently and carelessly committed one or more of the following acts:
(a) kept the keys to the closed-off floors in an area or place that was known to or accessible to the general public or to those criminals that the CHA knew or should have known came on the premises;
(b) left the keys to the elevator allowing travel to the closed off floors accessible to the general public and to those criminals that the CHA knew or should have known came on the premises;
(c) failed to inspect the elevator to determine if it had been prevented from being stopped at the closed-off floors;
(d) failed to inspect the doors to the closed-off area to determine if the locks were working so as to bar access to the closed-off areas;
(e) failed to inspect the elevator to determine whether the elevator lock, preventing it from traveling to the closed-off floors, was working;
(f) failed to warn the tenants that the doors to the c!osed:off areas were in fact unsecured and were accessible to the public and to those criminals who the CHA knew or in the exercise of reasonable care should have been known came on to the premises;
(g) failed to warn the tenants that the elevator was not locked and closed off to the floors which were being remodeled and [that such floors were] accessible to the general public and to those criminals who the CHA knew or should have known came on to the premises;
(h) failed to provide police protection or security guards in the building notwithstanding the fact that the CHA had provided police protection by furnishing security guards for some of the buildings in the Cabrini Green Project.
8. As a direct and proximate result of one or more of the negligent acts of the CHA, Debra was abducted on the premises of 1119 North Cleveland, taken to the closed-off area of the building, assaulted, beaten, raped and thrown out of a window.

The appellate court held that the plaintiff’s third amended complaint did state a cause of action. We agree. It will not be necessary to consider the correctness of all of the grounds given by the appellate court for its holding.

Our conclusion that the complaint did state a cause of action rests upon the holding in Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204.

In Pippin, this court held that the CHA owed no duty, either by statute or under the common law, to protect its tenants from criminal acts. The court recognized, however, that as a general principle liability is imposed upon a landlord who voluntarily undertakes to provide security measures, but performs the undertaking negligently, if the negligence is the proximate cause of injury to the plaintiff. (78 Ill. 2d 204, 209, citing Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 74 (insurer held responsible in tort for personal injuries suffered as a result of the insurer’s negligent performance of a voluntary inspection of the premises where the injuries occurred).)

The duty of care imposed upon the landlord under that analysis was held to be limited to the extent of the landlord’s undertaking. Because the CHA’s undertaking in Pippin was to hire a security firm to provide guard services for its building, this court concluded that the CHA could be held liable only for negligence in hiring. The Civil Practice Act states that pleadings should be liberally construed (Ill. Rev. Stat. 1979, ch. 110, par. 33(3)), and that no pleading is bad in substance if it contains sufficient information reasonably to inform the opposing party of the nature of the claim that the party is called upon to meet (Ill. Rev. Stat. 1979, ch. 110, par. 42(2)). Although the complaint is something short of a model, we agree with the appellate court’s conclusion that it can be read to allege that the CHA voluntarily undertook to close off and secure certain floors to prevent the commission of crimes thereon and to safeguard tenants and that the CHA performed that undertaking negligently.

The complaint alleges that the CHA’s negligent acts were the proximate cause of the abduction, rape, and death of the decedent. The CHA contends, citing Cross v. Wells Fargo Alarm Services (1980), 82 Ill. 2d 313, that it cannot be held liable merely for a negligent performance that proximately causes injury; but that, rather, it can be held liable only if the plaintiff alleges that the CHA’s conduct actually increased the risks and dangers to the plaintiff’s decedent. In other words, the CHA says that the landlord is not to be judged liable because it undertook a security measure that failed through its negligence, but is to be held liable only if the landlord’s actions left the tenants in a worse position than they were in before the landlord undertook the security measure. The complaint contains no allegation of an increase in danger, and no inference of an increase in danger can reasonably be drawn from it. Under the Pippin holding, however, no such allegation is necessary.

The decision in Pippin rests upon the principle in tort expressed in Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69. There an insurance company was held liable for injuries to employees of the company’s insured when a construction hoist fell. The insurer had voluntarily undertaken to inspect the premises, and the plaintiff alleged that the insurer had negligently conducted those inspections, proximately causing the injuries. This court in Nelson dismissed a contention similar to the one advanced by the CHA, stating:

“ ‘One who gratuitously renders services to another, is subject to liability for bodily harm caused to the other by his failure, while so doing, to exercise such competence and skill as he possesses’ [Restatement of Torts sec. 323(1) (1934)].
Our Appellate Court, in considering [this principle], concluded that it was ‘properly applicable only in situations involving active negligence, or misfeasance,’ (39 Ill. App. 2d at 129,) an earlier portion of its opinion indicating that it equated the terms ‘active negligence’ and ‘misfeasance’ as meaning the ‘creation of a risk, or danger,’ and its belief that defendant here could not be liable for a gratuitous undertaking unless it was guilty of negligence which ‘caused the hoist to fall.’ (39 Ill. App. 2d at 122.) In this we believe the court was plainly wrong. The language that a volunteer is liable for failure to use such competence and skill as he possesses does not admit to a conclusion that the only duty of the volunteer is to refrain from positive acts of negligence. Moreover, in those cases, subsequently discussed, where insurers have incurred liability as the result of gratuitous inspections of machines and equipment, liability rested upon a breach of the duty to make the inspections with due care, not upon acts which ‘created’ dangers or defects, or which caused the occurrence by which injury was received. [Citation.] *** [P]laintiffs, to support their actions, had only to show (1) that defendant undertook to make safety inspections and to render safety engineering services under circumstances which created a duty on defendant, owed to plaintiffs, to perform its undertakings with due care, and (2) that the gratuitous undertakings were negligently performed, such negligence resulting proximately in plaintiffs’ deaths and injuries.” 31 Ill. 2d 69, 74-75.

The situation in Cross v. Wells Fargo Alarm Services (1980), 82 Ill. 2d 313, is distinguishable from the one here. This court held in Cross that the duty of care imposed upon a landlord in a voluntary undertaking to provide guard service includes a duty not to create a condition of increased danger to tenants. Cross, however, was simply an application of the reasoning of Pippin to a complaint in which the plaintiff alleged that the landlord’s conduct had created increased dangers to him. Nowhere in Cross is it said that the duty of care recognized in Nelson and Pippin was simply a duty not to create a condition of increased danger.

The appellate court was correct in holding that the plaintiff’s allegation that the CHA was negligent in failing to provide guard services in the building did not state a cause of action. The duty of care considered in Pippin extends only to the landlord’s undertaking. Here, the landlord undertook only to secure certain floors. The duty of care arising was not a general duty to police. We have explained the inapplicability of our decision in Cross.

For the reasons given, the judgment of the appellate court reversing the circuit court and remanding the cause to the circuit court for further proceedings is affirmed.

Judgment affirmed.


text:
    (No. 55436.
    THE PEOPLE ex rel. THE DIRECTOR OF PUBLIC HEALTH et al., Plaintiffs, v. HORACE L. CALVO, Judge, et al., Defendants.

      Opinion filed January 21, 1982.

    Tyrone C. Fahner, Attorney General, of Springfield (Jon E. Tweedt, Assistant Attorney General, of counsel), for plaintiffs.
    Don W. Weber, State’s Attorney, of Edwardsville (Martin N. Ashley and Stephen E. Norris, of the State’s Attorneys Appellate Service Commission, of Mt. Vernon, of counsel), for defendants.
    Harry L. Kinser, of McLaughlin, Kinser & Bryant, of Chicago, and Kenneth C. Robbins, William C. Kennedy, and Jeffrey W. Maysent, of Oak Brook, for amici curiae Illinois Hospital Association and Illinois State Medical Society.
   JUSTICE SIMON

delivered the opinion of the court:

We are asked here to overturn an order of the circuit court of Madison County compelling the production of certain Department of Public Health (Department) reports relating to the control of venereal disease. The State’s Attorney argued before the circuit court that the production of the documents was necessary in order to uncover evidence against an employee of the Department, since discharged, who had been indicted for sexual misconduct with three women he counseled in the course of his duties with the Department’s sexually transmitted disease program. The Department, relying upon “An Act in relation to communicable disease reports” (Ill. Rev. Stat. 1979, ch. 126, par. 21), claimed privilege and moved to quash the subpoenas. When the circuit court denied the motion, the Department moved under our Rule 381 (73 Ill. 2d R. 381) for leave to file this original action in this court seeking a writ of mandamus or prohibition directing the circuit court judge to vacate his order. We allowed the motion.

The subpoenaed documents are reports of individual cases of venereal disease. Physicians, clinics and hospitals having knowledge of a case of venereal disease are required, by the Department rules to report it within 24 hours of its discovery. The Department may then institute a number of control measures, including treatment not only of the person diagnosed as having the disease but also those who have had contact with him or her, and the quarantine of any person having or exposed to venereal disease who refuses to submit to treatment. The State’s Attorney is seeking records concerning persons the former employee counseled. The records include the names and addresses of persons affected, interviews conducted with them, and details of the investigation conducted by the Department on the basis of the physician’s original report.

The State’s Attorney obtained two indictments against the former employee charging sexual misconduct. The trial of three of the five counts of the first indictment was conducted without the information the State’s Attorney now requests. Shortly after the employee was acquitted of those counts, the State’s Attorney caused the subpoenas in question to be issued. He has represented to this court, as he did to the trial judge, that the subpoenaed documents may lead the prosecution to other women the employee molested who would be willing to testify against him in the trial of the remaining charges to establish a modus operandi. He does not claim, however, to have any present information regarding additional victims.

The statute on which the Department relies (Ill. Rev. Stat. 1979, ch. 126, par. 21) provides:

“Whenever any statute of this State *** or any rule of an administrative agency adopted pursuant to statute requires medical practitioners or other persons to report cases of communicable diseases, including venereal diseases, to any governmental agency or officer, such reports shall be confidential, and any medical practitioner or other person making such report in good faith shall be immune from suit for slander or libel based upon any statements contained in such report.
The identity of any individual contained in a report of a *** venereal disease or *** an investigation conducted pursuant to a report of a *** venereal disease *** shall be confidential and the identity of any person named therein shall not be disclosed publicly or in any action of any kind in any court or before any tribunal, board or agency.”

The purpose of this statute is not only to encourage those with venereal diseases to submit themselves for treatment, but also to permit public health authorities to alert others who may have been exposed to these diseases to their. own need for treatment. Without an assurance of confidentiality, fear of social embarrassment resulting from disclosure of their identities and physical conditions might cause individuals with such a disease to shun treatment, while at the same time others to whom they may have transmitted the disease might remain unaware that they are in need of treatment. And, of course, without such assurance, physicians and hospitals might be reluctant to file the reports required of them. The statute represents recognition by the legislature that protection from venereal diseases depends in large part on the willingness of those suffering from such disease to seek out treatment and to identify those with whom they may have had contact, as well as the cooperation of physicians and hospitals in reporting cases. There is thus strong public policy in favor of preserving the confidentiality which the statute contemplates.

The circuit court judge, obviously concerned about disregarding the statute’s requirement of confidentiality, imposed safeguards which he felt would accomplish the objectives of the statute. Thus, although the subpoenas called for production of records before the circuit court to be used as evidence in the pending criminal case described by name and number in the subpoenas, the circuit court judge, in upholding the subpoenas, included in his order directions that the records be maintained in the strictest confidence. He further ordered that the disclosure of information contained in the reports be limited to the State’s Attorney or his assistants or investigators assigned to the pending criminal case and to a grand jury.

The State’s Attorney contends that the restrictions imposed by the circuit court circumvent the harm that would result from breach of the confidentiality requirements of the statute, and under these circumstances there is no need to apply the statute. He argues: the statute by its terms does not include grand jury proceedings; the statutory reference to actions of “any kind in any court or' before any tribunal, board or agency” applies only to adjudicatory proceedings and a grand jury investigation is not that kind of proceeding; and the statute is directed against public disclosure and this would not apply to a grand jury proceeding because of the secrecy with which it is cloaked. The State’s Attorney’s argument ignores, however, that the subpoenas called for production of the records at the criminal trial, clearly the type of situation covered by the statute. Whether the circuit court judge had authority to sanitize the production requests by eliminating commands of the subpoenas which obviously brought them into collision with the statute is questionable. But, even the restrictions imposed by the circuit court in an effort to rescue the requests from the strictures of the statute fall short of the hoped-for result.

The statute is intended to have a salutary effect, and the meaning the State’s Attorney ascribes to it is too restrictive to accomplish the protection it was designed to afford. We interpret the statute to apply to any type of proceeding authorized by law, and a grand jury inquiry fits that category. More specifically, in keeping with the broad purposes of the statute, a grand jury qualifies as a tribunal. (See State v. Deets (Iowa 1972), 195 N.W.2d 118, 121.) The statute prohibits two types of disclosure. One is public disclosure; the other is disclosure in “any action of any kind.” Thus, disclosure to a grand jury is prohibited even though what the grand jurors see and hear may not be available, at least immediately, for public consumption. Even adding to the traditional secrecy of grand jury proceedings the restrictions imposed by the circuit court on the use of the names and records does not satisfy the statute or render it inapplicable. The restrictions do not guarantee that some of the personnel in the State’s Attorney’s office or the grand jurors may not be acquainted with persons whose names might be exposed, thus causing embarrassment to those persons. Besides, the legislative history clearly establishes that “the identity of individuals contained in such reports will be confidential and not subpoenaed in courts of law.” (Remarks of Rep. Holewinski, May 12, 1975, House Debate on House Bill No. 796, at 131.) The records at issue here were subpoenaed by a court of law to be produced and used in the court in a pending criminal action.

The legislature has in some instances provided exceptions to confidentiality statutes when it intended to permit disclosure under specified circumstances. For example, the Mental Health and Developmental Disabilities Confidentiality Act allows a mental health facility director to report a violation of criminal law and the identity of individuals with personal knowledge of the facts to the appropriate law-enforcement agency (Ill. Rev. Stat. 1979, ch. 91½, par. 812). And, the Illinois statute defining the physician-patient privilege expressly permits disclosure by the physician in criminal actions involving specified charges.

We need not decide in this case whether the policy which the statute serves is so strong that it would survive a due process challenge in an appropriate case, for the State cannot raise that type of challenge.

The State’s Attorney relies on United States v. Nixon (1974), 418 U.S. 683, 41 L. Ed. 2d 1039, 94 S. Ct. 3090, and People ex rel. Illinois Judicial Inquiry Board v. Hartel (1978), 72 Ill. 2d 225, as authority for piercing the confidentiality requirements of the statute. Neither case is a compelling precedent here.

Nixon involved an implied privilege, based solely on a broad, generalized claim of a public interest in confidentiality. The court held that while the executive department might have need for a degree of confidentiality to perform its functions under article II of the United States Constitution, an absolute, unqualified privilege would too severely impede the functions of the judicial branch under article III, and so should not be read into the Constitution as a necessary feature of a workable government. The case might be relevant if this court were simply being called upon to weigh the State’s need for evidence against the Department’s need for confidentiality in order to discharge its responsibility for safeguarding the public health. But, the Department’s position here is supported by an express statutory privilege. The confrontation between confidentiality and other values was staged in the General Assembly, and confidentiality won, at least for cases as routine as this one. Nothing in Nixon suggests that the court would have disregarded a plain constitutional or statutory grant of a privilege. In fact, to throw over any clear, well-established privilege, whatever its source, for the sake of the highly speculative interest the State’s Attorney here asserts would amount to declaring that henceforth there shall be no reliable privileges, of any sort, recognized by the criminal justice system. Nixon does not say that, and it is not a sound position.

Neither is Hartel relevant here. In Hartel, a defendant was seeking possibly exculpatory information in the possession of a government agency investigating him. Here, the information is not sought by a criminal defendant to negate his guilt, but rather the prosecutor seeks the information hoping that it will lead to further evidence of guilt. While Hartel may hold that confidentiality can be breached where due process rights require disclosure, the decision cannot be read as holding that the privilege of confidentiality must give way because the State’s Attorney seeks protected information in the hope it will lead him to other evidence.

People v. Newman (1973), 32 N.Y.2d 379, 298 N.E.2d 651, 345 N.Y.S.2d 502, where a prosecutor’s need for information in connection with a criminal investigation was subordinated to a public policy protecting confidentiality, clearly supports the Department’s position. In the course of a homicide investigation, the director of a methadone program was subpoenaed to produce before a grand jury photographs of participants in the program. The purpose was to permit identification of the photographs by a witness to the killing who told the police she had seen the killer in a waiting room of a methadone maintenance treatment clinic while she was a patient awaiting treatment. The New York court excused production on the basis of a confidentiality provision created by statute in favor of participants in the methadone program, the success of which, the court found, depended upon the ability to guarantee each patient his participation would not be disclosed.

Our decisions in In re Roger B. (1981), 84 Ill. 2d 323, and People v. Bickham (1982), 89 Ill. 2d 1, are also consistent with treating the records sought in this case as privileged. In the former case, we upheld against a constitutional challenge a cloak of confidentiality given by statute to adoption records, holding that the statute was justified by the legislative judgment that confidentiality protects the integrity of the adoption process, a result favored by public policy. In Bickham we held that the statute providing for the physician-patient privilege in Illinois shielded a doctor’s records from the State’s demand for production in connection with a criminal investigation. In reaching that conclusion we regarded the public policy recognized by the legislature in adopting the statute, which assured patients of confidentiality in relationships with their physician, as superior to the requirements of the State’s investigation.

For the reasons set forth above, we conclude that the showing the State’s Attorney has made of need to obtain the privileged records is not sufficient to overcome the statutory privilege maintaining their confidentiality. The writ of mandamus directing the circuit court of Madison County to vacate its order denying the motion to quash the subpoenas should therefore issue and the subpoenas should be quashed.

Writ awarded.


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    (No. 54136.
    ELGIN AIRPORT INN, INC., Appellee, v. COMMONWEALTH EDISON COMPANY, Appellant.

      Opinion filed February 19, 1982.

      MORAN, J., concurring in the judgment.

      Puckett, Barnett, Larson, Mickey, Wilson & Ochsenschlager, of Aurora (Richard J. Larson, Peter K. Wilson, Jr., and Bernard K. Weiler, of counsel), for appellant.
    Brady, McQueen, Martin, Collins & Jensen, of Elgin (Wiley W. Edmondson and Alfred Y. Kirkland, Jr., of counsel), for appellee.
    James H. Eddleman, of Springfield, and William T. Crisp, of Crisp, Smith, Davis & Schwentker, of Raleigh, North Carolina, for amici curiae Association of Illinois Electric Cooperatives and National Rural Electric Cooperative Association.
   JUSTICE SIMON

delivered the opinion of the court:

The defendant, Commonwealth Edison, a regulated utility, supplied electricity to the plaintiff, Elgin Airport Inn, a motel. In particular, it supplied “three-phase” current, which the Inn needed for certain air-conditioning motors designed to run on that type of current. On November 3, 1976, a casting in a switching mechanism in Edison’s line broke, and one of the phases was cut off, a mishap known as “single phasing.” The resulting abnormal current is unsuitable for three-phase motors. After about five minutes on the abnormal current, the Inn’s motors overheated and burned. The smoke drove everyone out of the Inn; no one, however, was injured, and the damage to the motors amounted to less than $5,000. The Inn sued, under theories of negligence, res ipsa loquitur, strict tort liability, and violation of the Public Utilities Act (Ill. Rev. Stat. 1977, ch. 111 2/3, par. 32). The circuit court of Kane County, after trial, ruled for the defendant on all counts. The appellate court affirmed on the negligence, res ipsa, and statutory counts, but reversed on the issue of strict product liability in tort, holding that Edison was liable as a matter of law, and remanding for ascertainment of damages. (88 Ill. App. 3d 477.) We granted Edison leave to appeal, and, adopting the circuit court’s conclusion that the electricity, even if dangerous, was not unreasonably so, we now reverse the appellate court on the strict liability count.

The evidence supports the circuit court’s finding that Edison did nothing wrong. Unlike an ordinary product, which can be made and inspected at the maker’s convenience, electricity must be always ready, at the flip of the user’s switch. The supplier cannot possibly inspect all its miles of wire constantly to be sure that every ampere is perfect; the casting that failed here was not visible to the naked eye, and any defect in it could not be discovered unless the switching mechanism was disassembled and examined. Edison followed its normal inspection procedures, and the Inn does not suggest how those procedures could have been improved. Single phasing seems to be simply one of those things that happen occasionally; there is nothing Edison or anyone else could have done to prevent it or detect it immediately, and nothing Edison could have done to reduce the danger the abnormal current would pose to the Inn’s motors should it occur. The judgments for Edison on the negligence and res ipsa counts must therefore be affirmed. We also agree with the lower courts’ conclusion that the Inn’s claim under the Public Utilities Act is meritless. That brings us to the main issue of this appeal, strict liability.

The lack of any feasible way for Edison to prevent occasional intervals of defective current or reduce the danger of such current would not by itself insulate Edison from strict tort liability for a defective product. (Cunningham v. MacNeal Memorial Hospital (1970), 47 Ill. 2d 443.) This case, however, goes a step further. The danger of abnormal current can be reduced, by the user. Single phasing is a common enough phenomenon that the national electrical code, which Edison’s tariffs required the Inn to comply with, provides that appliances are to be equipped with suitable protective devices. The Inn’s air-conditioning units included a device supposedly designed to protect the motors in case of power failure or abnormality, such as single phasing. The device, however, failed to prevent the damage. The reason for the failure is not clear, because the record is incompletely developed on this point, as it is on many technical facets of this case. As the plaintiff had the burden of proof and lost in the circuit court, we shall assume that the failure was attributable to some defect in the protective device; there is evidence to support that hypothesis. At any rate, there is no evidence that Edison knew or should have anticipated that the device would fail.

In these circumstances, even if Edison knew that its current had single phased, to cut off that current entirely might not be the appropriate response. The defective current, while harmful to certain peculiarly sensitive appliances, namely three-phase motors — which are equipped with devices to protect against that harm — would not necessarily be unsafe or unsuitable for all other utilizations. Cutting it off in Edison’s main line would protect the Inn’s motors, but it could also indiscriminately black out other utilizations (and other customers along the line) for which the abnormal current supply might be, if not ideal, at least useable. The system of cutting off the abnormal current only in the sensitive appliances themselves, by means of a protective device incorporated in the appliance, seems eminently reasonable. Thus, even if Edison had known its current was abnormal, continuing to supply it (until normal current could be substituted) would not necessarily have been improper. Edison might reasonably have chosen simply to warn the Inn of the situation so that the Inn could check on its motors or take other appropriate action. Indeed, the main thrust of the Inn’s argument that Edison was negligent is not that the abnormality occurred but that Edison failed to warn the Inn for over five minutes. (The danger to the motors increases as they continue to draw the abnormal current.) And because Edison did not know and could not sooner discover that its current was abnormal, it is not strictly liable for a failure to warn of the danger. Woodill v. Parke Davis & Co. (1980), 79 Ill. 2d 26.

The contract between Edison and the Inn provided:

“Continuous service. The company shall not be responsible in damages for any failure to supply electricity or for interruption or reversal of the supply, if such failure, interruption, or reversal is without wilful default or negligence on its part.”

Whether this provision directly exculpates Edison from liability for single phasing is not entirely clear, but it does allow Edison to cut off the current entirely with impunity. As we have explained, the Inn has not proved, and we cannot say as a matter of law, that single phasing is, on the whole, inferior to no current at all. Since Edison could do nothing to avoid being forced to the choice, it seems unfair to hold Edison strictly liable for adopting the superior alternative while absolving it from liability had it followed the inferior course of completely shutting off electricity. And Edison should not be strictly liable for unknowingly and unavoidably transmitting current that it could properly have transmitted knowingly and intentionally, under the circumstances.

It appears that, for the foreseeable future, the technological possibilities for keeping appliances from being ruined by single phasing will lie with the appliances rather than with the current. Moreover, Edison cannot, either practically or legally, control the details of what appliances with what protective devices its customers are plugging in, or vary its rates accordingly; it can only insist on compliance with general standards like the national electrical code, which will inevitably lag behind the state of the art. Only the Inn here could, by selection of a less fragile motor or a .more dependable protective device, have prevented the loss; Edison could do nothing. Legally transferring losses from those who could prevent them to those who cannot will not improve safety. In Peterson v. Lou Bachrodt Chevrolet Co. (1975), 61 Ill. 2d 17, this court held that the seller of a used car was not strictly liable for its defects, partially because liability would not serve the policy of inducing manufacturers to make safer cars. That reasoning seems far stronger here, where the effects of liability might be not merely nonexistent but perverse.

Neither is the policy of spreading losses particularly compelling here. The loss is not purely a feature of Edison’s business of making electricity; it is at least as plausibly a problem of the motors. Edison did not create the risk single-handed; the danger here varies immensely from one user to another and is largely under the users’ control. Product liability as a type of built-in insurance, with the premiums incorporated into the price of the electricity, seems both unfair to those users who do not have valuable, fragile, inadequately protected appliances, but must pay for the dangers of those who do, and unnecessarily expensive in the long run if more motors burn out because those who can protect and save them have no financial incentive to do so. If the Inn wanted insurance, it could have bought its own, probably at lower and more accurate rates than Edison could provide.

We conclude that while the current was defective, in the sense that it was not as Edison designed it, and was no doubt dangerous (beyond the ordinary dangers of electricity) to certain appliances, the circuit court’s finding that it was not unreasonably dangerous is not against the manifest weight of the evidence. Edison could do nothing to prevent occasional single phasing of its current; the risk of single phasing and the danger single phasing would present to three-phase motors were well known in the electrical trade; the danger could best be minimized by the user, and the Inn, as required, had taken precautions, which proved, unfortunately, not to be infallible; given those precautions, the danger was not great; Edison, trying to provide continuous electricity at the user’s whim, could reasonably suppose that, for a short while at least, even abnormal current was better than none.

Because Edison would be strictly liable in tort for a defective product only if the defect made the product unreasonably dangerous (Dubin v. Michael Reese Hospital & Medical Center (1980), 83 Ill. 2d 277; Suvada v. White Motor Co. (1965), 32 Ill. 2d 612; Restatement (Second) of Torts sec. 402A (1965)), there is no need to consider the more fundamental questions Edison raises, such as whether electricity is a product at all, and whether a regulated utility can be strictly liable in tort.

The circuit court was correct to enter judgment for Edison on all four counts; the appellate court erred in reversing as to the strict liability count.

Appellate court affirmed in part and reversed in part; circuit 'court affirmed.

JUSTICE MORAN concurs in the judgment.


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    (No. 55230.

      In re THOMAS VINCENT CASSIDY, Attorney. Respondent.

      Opinion filed February 19, 1982.

      Philip Schickedanz, of Springfield, for the Administrator of the Attorney Registration and Disciplinary Commission.
    Heyl, Royster, Voelker & Allen, of Peoria (Lyle W. Allen, of counsel), for respondent.
   JUSTICE SIMON

delivered the opinion of the court:

The Administrator of the Attorney Registration and Disciplinary Commission filed a complaint against Thomas Vincent Cassidy, who has practiced law in Peoria County for 24 years, charging violations of Disciplinary Rules 6—101(a)(3) and 9—102(c)(4) of the Code of Professional Responsibility (79 Ill. 2d Rules 6—101(a)(3), 9—102(c)(4)). The charges arise from Mr. Cassidy’s conduct with respect to the disposition of certain settlement funds. Rule 6—101(a)(3) provides, “A lawyer shall not neglect a legal matter entrusted to him.” Rule 9—102(c)(4) states, “A lawyer shall promptly pay or deliver to the client as requested by a client the funds *** in the possession of the lawyer which the client is entitled to receive.”

The Hearing Board recommended that the respondent be censured and in addition that he forfeit his fee to his client. The Review Board upheld the recommendation of censure but disapproved the resolution of the Hearing Board relating to the respondent’s fee. For the reasons that follow, we decline to accept the recommendation that respondent be censured.

In the spring of 1976, Mr. and Mrs. Peter Churitch hired Mr. Cassidy to represent their son Michael, who was just one month shy of his 21st birthday. He had been seriously injured when an uninsured drunken driver, traveling the wrong way on U.S. Route 66, collided with the car that Michael was driving. Cassidy immediately went to work making claims against State Farm Insurance Company, which was Peter Churitch’s health insurer, and Allstate Insurance Company, the insurer of the vehicle Michael was driving. In addition, he filed a dramshop action against the two taverns that had caused the uninsured driver’s intoxication.

Through negotiations, suits and threatened suits, as well as claims for arbitration, Cassidy was able to realize on his client’s behalf from State Farm and Allstate a total of $17,000, which was promptly remitted to the client. Both insurance companies, however, retained a lien on all monies that might be collected by young Churitch as a result of the accident, including any settlement of the dram-shop action, pursuant to a written agreement signed by Michael Churitch.

On May 20, 1977, the dramshop action was settled for $14,000, very close to the statutory limit on such actions, but still $3,000 less than the liens imposed by State Farm and Allstate. It is the handling of this money, which remained in Cassidy’s trust account for over two years, that is at issue here.

Cassidy testified that his strategy with regard to this money was to try to persuade the insurance companies and a hospital and another attorney with liens against the fund to waive their liens, or in the alternative to wait until the statute of limitations had run on the companies’ causes of action and then distribute the money to Michael. He did not believe that Michael had any otherwise valid legal claim to the money, and therefore could not immediately distribute it to his client. Also, he apparently did not wish to interplead the parties, because he believed his client would only lose such a battle. He eventually did, however, file an interpleader proceeding in November 1979, and fortunately for Churitch, Allstate, the principal lien claimant, defaulted and the hospital waived its claim, so that Churitch received the money, less an amount awarded to an attorney who represented Churitch in a criminal case. Whether Allstate and the hospital would have followed the same course had Cassidy, instead of pursuing the strategy of delay, filed the interpleader action earlier cannot be determined.

Because Cassidy did not believe his client had any right as against the lienholders to the funds he held, and was reasonable in so believing, he cannot be charged with improper delay under Disciplinary Rule 9 — 102 in paying to the client the funds under his control. Moreover, because Cassidy’s strategy for preserving the funds for his client necessarily involved large amounts of time and patience, he cannot be charged with neglect of the case merely because its resolution did in fact take a long time. The only argument for neglect that can be drawn from the facts presented must stem from Michael Churitch’s feeling that he was not kept adequately informed of his legal situation or what his attorney, Mr. Cassidy, intended to do about it. We do not believe that this argument will stand up to scrutiny either, however.

Cassidy and his investigator both testified that numerous times they explained to Michael Churitch over the telephone that the settlement funds were subject to the liens, that Cassidy would do his best, but that the money would probably go to the insurance companies. Churitch apparently had difficulty understanding or remembering these communications or any other contact with his lawyer, as he was a frequent user of drugs, in part to kill the pain from the injuries he received in the automobile accident and in part for personal recreation. He was, in fact, arrested and convicted for possession of a controlled substance during the period in question. He testified before the Hearing Board that he had never been to Cassidy’s office. Yet a document bearing his signature was introduced into evidence that was notarized by Cassidy’s secretary, thus casting doubt on his testimony in this regard as well as on his testimony that he never heard from Cassidy or his investigator about the liens.

The hearing and review boards found support for their decisions in Cassidy’s failure to respond in writing to the numerous inquiries made by the forgetful Michael and his parents and the fact he did not at any time explain his strategy to Michael. Instead, apparently fed up with Michael’s inability to remember what he had been told regarding the liens, Cassidy testified he sometimes responded briefly over the telephone to Michael’s letters or would have his investigator respond. He did not explain his strategy to his client because he felt he was not required to do so, and probably did not think it wise since Churitch could not be relied upon in his condition to keep such information confidential. We believe the Commission places undue reliance on these facts. Disciplinary Rule 6 — 101 does not require that letters from clients be responded to in writing.

Cassidy’s conduct perhaps indicates a lack of sensitivity toward his client’s mental condition and an ungracious resistance to his client’s demands that the status of his claim be repeatedly explained to him, but this conduct does not rise to the level of neglect of a legal matter. Although perhaps Cassidy neglected his client’s feelings, there is no clear and convincing evidence that he neglected his client’s legal rights or that his representation of Churitch’s interest either against any insurance carrier or lien claimant was inadequate. Moreover, Cassidy’s opinion that Churitch was not entitled to receive any funds in his possession which he had not already been paid was well founded notwithstanding the ultimate resolution of the interpleader action. Censure is therefore inappropriate. An attorney’s reputation is a valuable asset; it should not be besmirched for failings of etiquette.

Complaint dismissed.