16 Pages Posted: 28 Mar 2013 Last revised: 8 Jul 2013
Date Written: March 25, 2013
In Lawlor v. North American Corporation of Illinois, 2012, IL 112530, the Illinois Supreme Court first recognized the intentional tort of intrusion upon seclusion. It then applied the tort in favor of a former employee against a former employer whose agents deceitfully investigated the employee in contemplation of future civil litigation. In Lawlor, the employer’s lawyer was also involved in the investigation. Under certain circumstances, under the Lawlor rationale, that lawyer could also be liable in tort to the former employee. Lawyer liability after Lawlor could be founded on either the intentional or unintentional acts of either the lawyer or the lawyer’s agent. Liability might fail, however, if there was a privacy waiver.
The circumstances permitting lawyer liability for intrusion upon seclusion during prelitigation civil claim investigations often include violations of the lawyer ethics rules employed for lawyer discipline. Because those harmed by lawyer intrusions seem far more likely to complain in their own civil suits than in lawyer disciplinary proceedings, in the future lawyer presuit civil claim investigations will increasingly be scrutinized under lawyer ethics rules in tort rather than disciplinary settings.
The Lawlor rationale raises many questions about lawyer liability for private privacy intrusions during civil claim investigations, including questions about agency, deceit and waiver. After Lawlor, Illinois lawyers will investigate civil claims even more cautiously than in the past.
Keywords: Privacy, civil claim investigations, legal ethics, professional responsibility for lawyers, intrusion upon seclusion, fact investigation, Lawlor, deceitful investigation, pretexting, private investigators, lawyer oversight of nonlawyers, law firm supervision, lawyer supervision
Suggested Citation: Suggested Citation
Parness, Jeffrey A., New Private Privacy Intrusions in Illinois During Prelitigation Civil Claim Investigations (March 25, 2013). 33 Northern Illinois University Law Review 563 (2013). Available at SSRN: https://ssrn.com/abstract=2239732