Frequently, opposing counsel will ask the Court to instruct the witness not to discuss his testimony with his counsel during a break in the trial. Does the Court have authority to do so in a family law case?
The answer is yes, the Court has the authority and the discretion to prevent conversation between counsel and his client in these circumstances. The key here is the distinction between criminal and civil cases. In a criminal case, the client has a Sixth Amendment right to confer with his attorney at any stage of the proceeding. To prevent the client from this sort of access to his counsel is most likely reversible error. The Sixth Amendment is so fundamental in a criminal case that reversible error occurs even without the necessity of showing any prejudice.
However, in a civil case, such as a family law case, it's a very different story. The Sixth Amendment right to counsel is not applied. Thus, the Court can prohibit conversation between counsel and his client. The seminal case is Stocker Hinge Mfg. Co. v. Darnel Industries, Inc., 61 Ill.App.3d 636, 377 N.E.2d 1125 (1st Dist. 1978). In this First District case, the Court spells out its authority to prevent discussions between counsel and his client during the course of a trial. The opinion makes it clear that the court has discretion to enter such an order, but that the discretion is not unlimited. If actual prejudice can be shown, then the Court should decline to issue such an order.
Two subsequent cases, both from the Second District, uphold Stocker Hinge:
Commonwealth Edison Co. v. Danekas, 104 Ill.App.3d 907, 433 N.E.2d 736 (2nd Dist. 1982), and Hill v. Ben Franklin Say. & Loan Ass'n., 177 Ill.App.3d 51, 531 N.E.2d 1089 (2nd Dist. 1988).
Take note that the Court is not required to issue an order preventing discussions of this nature, as all the cases refer to the Court's authority as being discretionary. But, if you ask for the ban to be applied, you have solid authority on your side.
This article was originally published in the Illinois Family Law Report, Volume XXXIX, Number 1, January 2016
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