Our panel of leading appellate attorneys review Friday's Illinois Supreme Court opinions in the civil case In re Karavidas and the criminal case People v. Trzeciak.

CRIMINAL

People v. Trzeciak

By Kerry J. Bryson, Office of the State Appellate Defender

Joseph Trzeciak was charged with, and convicted of, the murder of Donald Kasavich, a man from whom Trzeciak’s wife, Laura Nilsen, had apparently sought help in escaping from Trzeciak.

At issue before the Illinois Supreme Court was whether Illinois’s marital privilege statute (725 ILCS 5/115-16) applied to bar evidence of Trzeciak’s acts of domestic abuse against Nilsen and evidence of Trzeciak’s previous comment to Nilsen threatening to kill her and Kasavich. The threat was made when Trzeciak, during a fight with Nilsen, tied her up, put her in his truck, and drove to Kasavich’s trailer, continuing to beat her while accusing her of attempting to leave him. Upon arrival at Kasavich’s trailer, Trzeciak knocked without getting an answer. Trzeciak told Nilsen “he was going to cut [Kasavich’s] d--- off and put it in [her] mouth and then kill [them] both.”

The court noted that the marital privilege in Illinois has been construed as applying only to “communications which are intended to be confidential.” The Court elaborated that to fall within the privilege, two elements must be satisfied: (1) the communication must be an utterance or other expression intended to convey a message, and (2) the message must be intended by the communicating spouse to be confidential “in that it was conveyed in reliance on the confidence of the marital relationship.

With regard to the prior acts of abuse, the court cited to several out-of-state authorities and concluded that those acts were not “nonverbal conduct intended to convey a message” and were the sort of acts commonly found to fall outside of the privilege in other jurisdictions.

Concerning Trzeciak’s threat, the Court found that no Illinois court had previously defined “confidential” for purposes of the privilege. The Court went on to cite, at length, from out-of-state authorities and concluded that the privilege covers only those private exchanges which “would not have been made but for the absolute confidence in, and induced by, the marital relationship,” and “prompted by the affection, confidence, and loyalty engendered by such relationship.” The threat here did not meet that definition because it was “not made in reliance on the confidences” of the marriage, but rather Trzeciak intended Nilsen to reveal the threat to Kasavich. Thus, the privilege did not apply.

Justice Theis specially concurred, noting her agreement with the outcome and discussing the reasoning by which she would have reached that outcome. Justice Theis disagreed with the Court’s extensive reliance on out-of-state jurisprudence to carve out a new exception to the marital privilege. Justice Theis would have found that the acts of abuse were excluded from the privilege under the plain language of the statute, without need for out-of-state authority, given that the statute applies only to communications between spouses and not the conduct at issue here. She also would have found that existing case law provided guidance to determine whether a statement was intended to be “confidential” and that the threat here did not fit within that definition because it was clear from the circumstances that Trzeciak intended that the victim be made aware of the threat. Justice Theis was critical of the complicated standard set out by the Court as leaving “trial courts in Illinois in the untenable position of having to assess, without any real objective criteria from this court, the health and status of a marriage at the time a communication occurred, in order to determine, as the majority articulates, whether the communication was ‘motivated by [the spouse’s] reliance on the intimate, special trust, and affection of [the] marital relationship.’ ” Justice Theis concluded that it is “entirely unclear” what standard trial courts should apply to made a judicial determination of marital harmony.

Practitioners confronting a claim of marital privilege will want to familiarize themselves with this decision, as it sets out a new standard for determining whether a communication is confidential.  Likewise, while conduct may constitute a confidential communication for purposes of the privilege, practitioners will want to consult this case in determining whether specific acts fit within the privilege (conduct intended to convey a message which the communicating spouse intends to be confidential).

CIVIL

In re Karavidas

By Alyssa M. Reiter, Williams, Montgomery & John Ltd.

In this disciplinary matter, the Supreme Court held that no professional discipline is warranted absent “a showing by clear and convincing evidence that the respondent attorney has violated one or more of the Rules of Professional Conduct.  Mere bad behavior that does not violate one of the Rules is insufficient.”

Respondent was a personal injury lawyer with no experience in probate or trust matters.  He was named executor of his father’s estate and trustee of certain trusts that were to be created.  Karavidas failed to fund the existing trust and failed to create the other trusts that the trust documents required.  Karavidas loaned estate funds to himself (which he repaid) and used estate funds for other family members.  His position was terminated after his sister learned that Karavidas had tried to sell the family business without her or her mother’s knowledge.  

The Administrator of the ARDC filed a one-count complaint against Karavidas alleging he converted assets, breached fiduciary obligations owed to the estate’s beneficiaries, and engaged in improper conduct.  The Hearing Board found a breach of fiduciary duty and conversion and recommended a four-month suspension.

The Review Board concluded that absent an attorney-client relationship between Karavisas and the estate, the fiduciary duty and conversion charges could not serve as a basis for discipline.

The Supreme Court found that the finding of breach of fiduciary duty was not against the manifest weight of the evidence.  The Court declined to determine whether the conduct was also “conversion.”  Instead, it considered whether the civil offense is a proper basis for professional discipline.  The Court criticized that the charges of misconduct were not “tethered to an alleged violation of a specific Rule of Professional Conduct….”  The Court accepted the Review Board’s recommendations and dismissed the charges.