In the recent case of case of Bramlett v. Vandersand, 2020 IL App (5th), the plaintiff was mowing grass at his mother-in-law’s residence when she asked him to check on a malfunctioning light switch located outside the house. The plaintiff agreed and asked Dorothy to turn off the power connected to the light switch from inside the house. The decedent was battling advanced cancer and allegedly shaken by difficult news received earlier in the day which resulted in her forgetting to turn off the power. This resulted in the plaintiff enduring an electrical shock, falling from his ladder and sustaining injuries. Ultimately, the Court affirmed that barring the “Statement Under Oath” by claiming protections from the Dead-Man’s Act was an invalid argument and could not be made against Phil Bramlett’s negligence action suit. Bramlett’s mother-in-law, Dorothy Edward, passed away shortly after the lawsuit was originally filed, leaving Kelly B.C. Vandersand – executor of Dorothy’s estate – as the party defendant.
The defendant filed a pretrial motion in limine which sought to bar plaintiff from offering a statement made under oath by the decedent on the basis that plaintiff’s counsel had improperly taken the statement in violation of Rule 4.3 of the Illinois Rules of Professional Conduct of 2010. On appeal, plaintiff claimed that the circuit court erred in excluding decedent’s statement because the defendant failed to establish that plaintiff’s counsel violated Rule 4.3 and argued that summary judgement was improper due to the fact that admissions in the decedent’s statement were deemed admissible as substantive evidence of negligence.
The Illinois Dead-Man’s Act (735 ILCS 5/8-201)
This statute is not limited strictly to trials and functions to prevent any parties in litigation from testifying about their own conversations with a deceased or disabled person if that conversation would provide evidence beneficial to the party testifying. Additionally, the Act protects estates from fraudulent claims or defenses by removing any temptation of false testification and asserts party equality with cases involving deceased or disabled individuals (Gunn v. Sobucki, 216 Ill. 2d 602, 609 (2005). Established precedent has proven it is reasonable to assume that witnesses may be tempted to testify falsely if their testimony cannot be refuted and that enticement may grow if the witness is interested in the outcome of a specific case. The Dead-Man’s Act typically bars a witness’ testimony if the following are true: 1) The witness testimony is intended to benefit the witness; 2) The witness has a financial interest in the outcome of the case; and 3) The witness’ testimony refers to a conversation with a deceased or legally disabled individual or an event taking place. The court declared an admission by a party opponent is substantive evidence which is admissible as a recognized exception to the rule against hearsay set by Rennick’s precedent that death does not erase an admission from a party’s lips (Rennick, 181 Ill. 2d at 406; Ill. R. Evid. 801).
Despite the Defendant’s efforts in filing a motion for summary judgement, arguing that under the Dead-Man’s Act, the plaintiff was prohibited from testifying about the events or any conservations in question that occurred with the decedent, and that because the June 14, 2010, “Statement Under Oath” had been barred by the court, there was no admissible evidence to establish negligence on the part of decedent. The Court of Appeals ultimately found the “Statement Under Oath” to be comprised of relevant admissions from the decedent that are not barred by the Dead-Man’s Act and asserted that the admissions created a genuine issue of material fact regarding the decedent’s negligence. Hence, the circuit court was found to have made a mistake in granting a summary judgement in favor of the defendant.
Evidence Regarding “Statement Under Oath”
The defendant sought to bar the “Statement Under Oath” claiming that the Plaintiff’s counsel violated Rule 4.3 of Illinois Rules of Professional Conduct by failing to inform the decedent of the following; counsel represented plaintiff and plaintiff’s interests were adverse to decedent’s interests, decedent’s statements could be used against her in a future legal proceeding, and advice decedent of her right to have counsel present. However, the case record contained no evidence that plaintiff’s counsel engaged in any trickery, manipulation, or deception in order to obtain the statement, and found no indication of plaintiff’s counsel stating or implying any disinterest or objectivity toward the decedent.
The defendant largely relied upon Bruske (44 III. 2d at 134) in support of her assertion that evidence may be excluded as a sanction for an ethical violation. In Bruske, a private investigator employed by plaintiff’s counsel appeared at defendant’s home with a court reporter and took a statement from the defendant concerning the subject of the litigation. The statement was taken after the filing of a negligence action and the appearance of defendant’s counsel, and without notice to defendant’s counsel. The U.S. Supreme Court determined that plaintiff’s counsel’s failure to abide by the rules of discovery and the rules of ethics must carry an appropriate sanction, and that the exclusion of defendant’s statement was an appropriate sanction for the unethical conduct (Bruske, 44 Ill. 2d at 136). The Court of Appeals did not find a sufficient factual basis that the plaintiff’s counsel violated Rule 4.3 of IRPC 2010, therefore the imposition of a sanction barring decedent’s statement was improper, and the circuit court’s order prohibiting use of the “Statement Under Oath” for violating Rule 4.3 was vacated. Upon reassessment of the record, the court reasonably concluded that there was no evidence to indicate Dorothy Edward misunderstood the role of plaintiff’s counsel, and that her actions and decisions reflected a clear understanding of her situation.
Violation of IRPC: Rule 4.3
The rules of professional conduct are intended to protect the attorney-client relationship, maintain public confidence in the legal profession, and ensure the integrity of legal proceedings. When a lawyer communicates with an unrepresented person, the lawyer cannot tell or give an impression that the lawyer has no personal or professional interest in the matter. In this case of Bramlett v. Vandersand, the defendant argued that the decedent had little understanding of the law and that the circumstances surrounding her “Statement Under Oath”, at the time, created an atmosphere of misunderstanding that plaintiff’s counsel never attempted to mend. The plaintiff informed all parties that he had self-reported the ethical violations alleged by defendant’s counsel to the Attorney Registration and Disciplinary Committee and filed a motion to stay the proceedings and rulings pending a response from the committee.
The defendant contended that the circuit court did not abuse its discretion in finding a violation of Rule 4.3 nor commit err when the decedent’s “Statement Under Oath” was barred. Due to the absence of an evidentiary hearing, the court did not set out factual findings, reasons or basis for the sanction. The Court noted since Dorothy summoned plaintiff’s counsel, no lawsuit had been filed, and the decedent had already given a notarized statement, they could not find any evidence that the sanction imposed was warranted. Additionally, the court reasonably assumed that the decedent may have wanted to preserve her testimony before she passed away or became too ill and based upon the record in this case, there was no sufficient factual basis to find that plaintiff’s counsel violated Rule 4.3.
This blog post was co-authored by Casey Delury; Pre-law student at Elmhurst College