A state appeals panel has vacated sanctions a downstate judge applied to a personal injury lawyer, determining the jurist incorrectly punished the attorney for criminal contempt of court labeled as a civil penalty, because a judge agreed the lawyer had revealed too much about a confidential medical malpractice settlement to a news reporter.
The underlying action involves a wrongful death lawsuit in which attorney Bruce Pfaff represented Heidi Edwards, on behalf of her late husband, against Pekin Memorial Hospital. The parties reached a settlement on Feb. 1, 2019, a Friday. On Monday, when the trial was to begin, newspaper reporter Michael Smothers learned of the settlement and called Pfaff, who believed he abided by the parties’ confidentiality agreement and said, “Mrs. Edwards was pleased with the outcome.”
A week after Smothers’ article identified the parties, trial judge and case venue, with a summary of underlying facts, the parties formalized the settlement and confidentiality agreement. Edwards would be known as “the surviving spouse of her 35-year-old husband” with defendants labeled as a “downstate Illinois medical group on behalf of a physician employee.”
In March 2019, Pfaff emailed a release about the settlement to Smothers, whose subsequent reporting linked all the relevant facts, including the settlement amount, to Edwards. The defendants responded with a June filing asking Tazewell County Circuit Court Judge Michael Risinger to find Pfaff in indirect civil and criminal contempt for violating the confidentiality agreement.
According to court records, Risinger repeatedly expressed concerns about the allegations of criminal contempt without the involvement of the county state’s attorney’s office. In November 2019, Risinger found Pfaff in indirect civil contempt based on the reference to Tony Edwards in the subject field the March email Pfaff sent to Smothers, which Risinger determined to be an inadvertent disclosure.
After further proceedings, Risinger ultimately settled on directing Pfaff to pay $27,868 for the defendants’ legal fees in December 2020. That prompted an appeal and cross-appeal to the Third District Illinois Appellate Court. Justice Linda Davenport wrote the opinion, filed March 29; Justices Liam Brennan and Joseph Hettel concurred.
On appeal, Pfaff asked the panel to reverse the contempt finding and vacate all fee orders or rulings forcing Pfaff to prove the email was purged from his case management software and Smothers’ inbox. The defendants sought either an affirmation of the contempt or a reversal of Judge Risigner’s opinion the disclosure was inadvertent.
Davenport said the panel’s opinion of Pfaff’s appeal resolved the entire dispute and so it didn’t address the merits of the cross appeal. She further clarified “our analysis is not affected by the willfulness or inadvertence of Pfaff’s conduct.”
Although Risinger dismissed the criminal contempt allegation, the panel said the nature of the punishment prevails. Whereas criminal sanctions are “punitive and retrospective,” Davenport wrote, “civil sanctions are “coercive and prospective in nature” in that they seek to enforce future compliance. In other words, she said, “While criminal contempt generally arises from a prohibited act, particularly one that cannot be undone, civil contempt arises from the omission of a mandated act, one that can yet be compelled.”
“Crucially,” Davenport wrote, “a valid civil contempt order must contain a purge condition requiring compliance with the previously disregarded court order.”
Although Judge Risinger did apply purge instructions, asking for proof of email deletion and to have the release pulled from Pfaff’s website, the action of breaching confidentiality is “an incurable violation — the hallmark of criminal contempt.”
The panel said the entire ruling rested “on a single act: Pfaff’s press release email with the subject line ‘Regarding: Edwards, Estate of Troy.’ Pfaff cannot now unsend that email to prevent Smothers from reading its subject line. Indeed, any attempt to retrieve or destroy the press release email would be in vain. Smothers has already read the email. Accordingly, where the disclosure cannot be undone, the rationale for civil contempt disappears.”
That reality renders Risinger’s purge edicts “wholly ineffective,” Davenport wrote, further calling them “symbolic exercises rather than true purge conditions. They do no more than shut the barn door after the horses have bolted.”
The panel said defendants could have pursued criminal contempt violations without sign-off from a state prosecutor, but doing so would have required filing that petition as a distinct action from the wrongful death litigation and personally serving Pfaff notice of the new lawsuit. Then the court, Risinger or another judge, would have needed to inform Pfaff of his constitutional rights and could only “find him guilty of a criminal contempt charge beyond a reasonable doubt,” Davenport wrote.
Since the panel voided the contempt finding, it also voided the sanctions.
Representing Pfaff in the matter was attorney Michael Reagan, of Ottawa, and the Geneva firm of Konicek & Dillon.
The hospital parties are represented by Quinn, Johnston, Henderson, Pretorius & Cerulo, of Peoria; and Donohue Brown Mathewson & Smyth, of Chicago.