2018 LCBA Seminar James M. Quigley, Esq. 607.6 Analyzed 2018 LCBA Seminar James M. Quigley, Esq. Jordan D. Rosenberg, Esq.

History Section 608(f) under the ‘old’ Act provided: All counseling sessions shall be confidential. The communications in counseling shall not be used in any manner in litigation nor relied upon by any expert appointed by the court or retained by any party. 2016: overhaul of IMDMA which repealed 608. No counseling provisions in new Act! 2017: new section 607.6 added with same language from 608(f).

Inquiry There is a one (1) year gap from 2016 - 2017 without any counseling provisions in the IMDMA. If counseling was ordered during that time, does 607.6 apply? - YES Section 801 provides that the current version of the Act, including any amendments, applies to “all proceedings commenced on or after its effective date” as well as “all pending actions and proceedings commenced prior to its effective date with respect to issues on which a judgment has not been entered.” Section 801(b) of the Act further provides that “[e]vidence adduced after the effective date of this Act shall be in compliance with this Act.”

607.6 (a) The court may order… Individual counseling for the child, Family counseling for one or more of the parties and the child, or Parental education for one or more of the parties, “If it finds one or more of the following: if agreed; the child’s physical health is endangered/the child’s emotional development is impaired; abuse of allocated parenting time under 607.5 has occurred; or one or both of the parties have violated the allocation judgment with regard to conduct affecting or in the presence of the child.”

Another Look at 607.6(d) All counseling sessions shall be confidential. The communications in counseling: [1] shall not be used in any manner in litigation, nor [2] relied upon by any expert appointed by the court or retained by any party.

Side Note…who is an Expert? Expert testimony is admissible when the expert testifies to matters that are beyond the common knowledge of ordinary citizens and where the testimony will aid the fact finder in reaching its conclusion. People v Gilliam, 172 Ill 2d 484, 513 (1996). Expert testimony is admissible if the proffered expert is qualified by knowledge, skill, experience, training, or education. Snelson v Kamm, 204 Ill 2d 1, 24 (2003). An expert, no matter how skilled or experienced, may not state a judgment or opinion based on conjecture. People v Ceja, 204 Ill 2d 332 (2003).

What is a ‘Communication?’ Black’s Law - Communication - 1. The interchange of messages or ideas by speech, writing, gestures, or conduct; the process of bringing an idea to another's perception. 2. The messages or ideas so expressed or exchanged. Counselor reports the children are “doing well?” Counselor reports that boy said “I hate my dad?” Counselor reports that girl nodded when asked “did she hit you?” Where do you draw the line?

Waiver? By the parties? Under Mental Health and Developmental Disabilities Confidentiality Act? 740 ILCS 110/4(a) - “the following persons shall be entitled, upon request, to inspect and copy a recipient’s record or any part thereof… (1) the parent or guardian of a child who is under 12…(7) an attorney or GAL who represents a minor older than 12 in any judicial proceeding, provided that the court has entered an order granting the attorney this right.” Through procedure under Child’s Representative Form Order?

What does the Court say? Read the plain language of the statute. In re Marriage of Goesel, 2017 IL 122046, ¶ 13 “It is improper for a court to depart from the plain statutory language by reading into the statute exceptions, limitations, or conditions that conflict with the clearly expressed legislative intent.” If Statute was subject to a waiver, the legislature would have provided for a waiver.

What’s the point 607.6? “The beneficent purposes of psychiatry can only be fully realized when the patient knows that what is revealed in the evaluation conferences or communications are free from judicial scrutiny…” In re Marriage of Lombaer, 200 Ill. App. 3d 712, 722 (1990) The purpose of the privilege is to promote “full and frank consultation” between the attorney and client “by removing the fear of compelled disclosure” of the information conveyed. Fischel & Kahn, Ltd. v. van Straaten Gallery, Inc., 189 Ill. 2d 579 (2000) If it’s not confidential, is it really even counseling?

Statutory Authority A statutory rule of evidence is effective “unless in conflict with a rule or a decision of the Illinois Supreme Court.” Ill. R. Ev. 101 “In determining what is in the best interests of a child, the circuit court should hear any and all relevant evidence.” In re Marriage of Collingbourne, 204 Ill. 2d 498, 522 (2003) vs. In re Marriage of Noyes, 2018 IL App (2d) 170667-U, ¶ 32 “…Communications in counseling shall not be prior to the used in any manner in litigation…” 750 ILCS 5/607.6(d) Does 607.6 conflict with Collingbourne?

Take Away Be careful how you draft! Suggestion: enter an Order that specifically states: “All communications in counseling are confidential and barred, including those observed by a GAL or other expert.” “Counseling not relevant in these proceedings” Alternatively, appoint a counselor pursuant to 604.10(b) Subpoena the notes of GAL and/604 Read GAL and 604 reports – does basis of opinion or report stem from counseling? Fruit of the poisonous tree?

THANK YOU! James M. Quigley, Esq. Jordan D. Rosenberg, Esq. JMQuigley@BeermannLaw.com JRosenberg@BeermannLaw.com 2275 Half Day Road, Suite 350 Bannockburn, IL 60015 (847) 681-9600 161 N. Clark, Suite 2600 Chicago, IL 60601 (312) 621-9700