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Brunton v. Kruger

Supreme Court of Illinois

March 19, 2015

ROBERT KRUGER et al. (Matthew F. Tibble, Contemnor-Appellant)

Appellate court judgment affirmed. Circuit court judgment affirmed. Cause remanded.

Pretzel & Stouffer, Chtrd., of Chicago (Robert Marc Chemers, Richard M. Waris, Matthew Tibble and Philip G. Brandt, of counsel), for appellant.

Darrell E. Dies, of Eureka, and Justin J. Karubas and Ryan A. Biller, of Rolewick & Gutzke, P.C., of Wheaton, for appellees.

Mercer Turner, of Bloomington, for appellee June Brunton.

Freeman, Thomas, Kilbride, Karmeier, Burke, and Theis, Justices concurred in the judgment and opinion.


Page 568


[¶1] The circuit court of McLean County held attorney Matthew F. Tibble in direct, but noncontumacious, civil contempt after he refused to comply with an order to disclose certain documents that were the subject of discovery requests in the underlying will contest. Tibble, who represented the accounting firm of Striegel, Knobloch & Company, LLC, cited the accountant's privilege provision of the Illinois Public Accounting Act (225 ILCS 450/27 (West 2012)), as the basis for his refusal to comply. The appellate court vacated the contempt finding, but otherwise affirmed the judgment of the circuit court ordering release of the documents. 2014 IL App. (4th) 130421, 380 Ill.Dec. 366, 8 N.E.3d 536.

Page 569

[¶2] This court granted Tibble's petition for leave to appeal pursuant to Supreme Court Rules 304(b)(5) and 315. Ill. S.Ct. Rs. 304(b)(5), 315 (eff. Feb. 26, 2010). For the following reasons, we affirm the judgment of the appellate court.


[¶4] The underlying litigation involves a will contest brought by June Brunton, the daughter of Helen P. and Gordon J. Kruger, against her brother, Robert Kruger, as trustee of the trusts established by their late parents and as personal representative of their estates (Estates), and against Robert and other family members as individuals. Brunton, who was not named a beneficiary of the trusts, alleges undue influence by certain family members and her mother's diminished capacity at the time the trust documents were executed.

[¶5] The elder Krugers consulted with the accounting firm of Striegel, Knobloch & Company, LLC (Striegel) during their estate planning process. They provided Striegel with confidential information, including information about their family, income, assets, and estate planning goals. Striegel, in turn, provided estate planning information to the attorney who prepared the Krugers' trust documents and " pour over" wills.

[¶6] Both Brunton and the Estates issued subpoenas to Dennis Knobloch, a certified public accountant (CPA) at Striegel, seeking discovery of the information and documents provided by the Krugers to Striegel. The Estates subsequently issued a deposition subpoena to Knobloch, seeking the same information.

[¶7] Another CPA at Striegel complied with the Estates' subpoenas, turning over all of the documents in its possession that related to the Krugers' estate planning. However, Striegel did not provide these documents to Brunton, who then filed a motion to compel compliance with her subpoena. Striegel invoked section 27 of the Act, which governs the confidentiality of records or information obtained by a certified public accountant acting in his confidential capacity as a CPA. The circuit court ordered Striegel to produce tax documents, but held that the estate planning documents were privileged under section 27. Striegel complied.

[¶8] Brunton then issued deposition subpoenas to a Striegel CPA and a non-CPA employee, seeking production of the estate planning documents that the court had previously ruled privileged. Striegel filed a motion to quash the subpoenas, again invoking section 27.

[¶9] At a subsequent hearing, the circuit court again found the estate planning documents privileged, but held that Striegel had waived the privilege by providing the documents to the personal representative of the Krugers' Estates. In addition to waiver, the circuit court found that a testamentary exception to the statutory privilege applied in this case, where the donative and testamentary intent of now-deceased clients were at issue, one of the CPA advisors was deceased and one was no longer competent, and the attorney who prepared the wills and trust documents was also deceased.

[¶10] Based on waiver and the testamentary exception, the circuit court denied the motion to quash and ordered Striegel to produce the documents. Striegel's attorney, Tibble, refused to comply with the discovery order and was found in contempt and fined $100, thus allowing the matter to be taken to the appellate court.

[¶11] The appellate court held that the client, not the CPA, is the holder of the privilege (2014 IL App. (4th) 130421, ¶ 43), and that the statutory accountant's privilege is subject

Page 570

to the same testamentary exception as the common law attorney-client privilege ( id. ¶ 46). The appellate court held, in the alternative, that the personal representative and other heirs had waived the privilege by filing briefs with the appellate court in which they urged the court to affirm the circuit court's discovery order.

[¶12] Thus, the appellate court vacated the finding of contempt, but otherwise affirmed the circuit court's judgment.


[¶14] The parties present several issues. Appellant Tibble asks: (1) whether the accountant's privilege belongs to the client who communicated information to the accountant or to the accountant who received the information; (2) whether a testamentary exception is applicable to the accountant's privilege; and (3) whether the holder of the privilege has waived it.

[¶15] Appellee Brunton argues that the information she seeks from Striegel is not " confidential information acquired in the course of public accounting," and, thus, section 27 is not implicated.

[¶16] The other appellees, the trustee/executor and the beneficiaries of the wills and trusts, urge this court to affirm the judgments below. Specifically, they argue that the privilege belongs to the client and, thus, to the client's estate. In the alternative, they argue that if the privilege belongs to the accountant, a testamentary exception to the privilege applies, and that the accounting firm waived the privilege when it produced documents in response to the Estates' subpoena.

[¶17] Acting in the Capacity of Licensed or Registered CPA

[¶18] If Brunton is correct that the information at issue was not " obtained by [the accountant] in his confidential capacity as a licensed or registered CPA," then section 27 does not apply. She points to section 8.05(a) of the Act, which defines " Accountancy activities" :

" (a) Accountancy activities are services performed by a CPA, including:
(1) signing, affixing, or associating the names used by a person or CPA firm to any report expressing an assurance on a financial statement or disclaiming an opinion on a financial statement based on an audit or examination of that statement or to express assurance on a financial statement;
(2) other attestation engagements not otherwise defined in paragraph (1); or
(3) offering to perform or performing one or more types of the following services involving the use of professional skills or competencies: accounting, management, financial or consulting services, compilations, internal audit, preparation of tax returns, furnishing advice on tax matters, bookkeeping, or representations of taxpayers; this includes the teaching of any of these areas at the college or university level." 225 ILCS 450/8.05(a) (West Supp. 2013).

[¶19] Based on this definition, she argues that the accountant privilege of section 27 applies only to " financial statement certification," and that Striegel's actions " encroached into another licensed profession, the practice of law." Specifically, she asserts that Striegel suggested that the Krugers' wills contain in terrorem clauses and conveyed the Krugers' testamentary intent to the attorney who drafted their wills and trust documents. These acts, she argues, fall outside the statutory definition of accounting activities.

[¶20] The appellate court properly rejected Brunton's narrow interpretation of section 8.05, noting that " auditing financial statements is not the only service that CPAs offer to the public--even though they alone are allowed to perform that

Page 571

particular service." 2014 IL App. (4th) 130421, ¶ 32. Certified public accountants use their " 'professional skills or competencies'" ( id. (quoting Pub. Act 98-254, § 10 (eff. Aug. 9, 2013) (adding 225 ILCS 450/8.05))), to provide estate planning services ( id. ¶ 33). The appellate court concluded that the privilege of section 27 applies to information obtained by an accountant in the course of providing estate planning services, just as it applies to information obtained by an accountant providing one of the services expressly listed in section 8.05(a). Indeed, the court noted, " it is unclear why the legislature would care about confidentiality when the CPA audited a financial statement but would not care about confidentiality when the CPA helped a client with estate planning." Id.

[¶21] We agree with the appellate court's analysis. In addition, we note that section 8.05(a), by using the word " including," indicates a legislative intent that the list of accounting functions that follows is nonexhaustive. See, e.g., People v. Perry, 224 Ill.2d 312, 331, 864 N.E.2d 196, 309 Ill.Dec. 330 (2007) (interpreting the word " including" to mean that the specified list of items is illustrative, not exhaustive). Because professional accountants regularly provide the types of services that Striegel provided to the Krugers, and because the information was provided to a Striegel accountant acting " in his confidential capacity as a licensed or registered CPA" (225 ILCS 450/27 (West Supp. 2013)), such information comes within the scope of the statutory accountant privilege.

[¶22] Holder of the Privilege

[¶23] At the time this dispute arose,[1] section 27 of the Public Accounting Act provided: " Accountant as witness" " A licensed or registered [CPA] shall not be required by any court to divulge information or evidence which has been obtained by him in his confidential capacity as a licensed or registered [CPA]." 225 ILCS 450/27 (West 2012).

[¶24] This case requires us to interpret section 27 to determine whether the privilege is held by the CPA or by the client who provided the information. In doing so, our primary objective is " to ascertain and give effect to the intent of the legislature." Gaffney v. Bd. of Trs., 2012 IL 110012, ¶ 56, 969 N.E.2d 359, 360 Ill.Dec. 549. The best indication of that intent is the language of the statute itself, which must be given its plain and ordinary meaning. People v. Hammond, 2011 IL 110044, ¶ 53, 959 N.E.2d 29, 355 Ill.Dec. 1. " We will not depart from the plain statutory language by reading into it exceptions, limitations, or conditions that conflict with the expressed intent of the legislature." Gaffney, 2012 IL 110012, ¶ 56. Further, we will not utilize extrinsic aids of statutory interpretation unless the statutory language is unclear or ambiguous. Id. " A statute is ambiguous if it is capable of being understood by reasonably well-informed persons in two or more different ways." Krohe v. City of Bloomington, 204 Ill.2d 392, 395-96, 789 N.E.2d 1211, 273 Ill.Dec. 779 (2003). Because interpretation of a statute is a question of law, our review is de novo. In re Commitment of Fields, 2014 IL 115542, ¶ 32, 381 Ill.Dec. 423, 10 N.E.3d 832.

[¶25] The circuit court held that the accountant who rendered accounting services in his confidential capacity is the holder of the privilege and may choose to invoke it. Tibble ...

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