Can an Illinois Attorney Instruct Their Client Not to Answer a Deposition Question?

A Look at Supreme Court Rule 219 and Two Key Case Studies

Depositions are a cornerstone of civil litigation in Illinois. They provide parties with the opportunity to gather sworn testimony before trial, shape legal strategies, and evaluate the strength of their claims or defenses. But while depositions are expansive in scope, they are not without limits, especially when it comes to whether an attorney can lawfully instruct a client not to answer certain questions.

The General Rule Under Illinois Law

Illinois law strongly disfavors instructions not to answer deposition questions. Under Illinois Supreme Court Rule 219(a):

If a party or deponent refuses to answer a question asked during oral examination, the examination should either, continue on other matters, or adjourn at the discretion of the examining party. After giving notice to all parties, the proponent may move the court to compel an answer.

If the court finds the refusal to answer was without substantial justification, it shall order sanctions, including reasonable attorney’s fees and expenses against the offending party, deponent, or even their attorney.

So When Can a Client Refuse to Answer?

In practice, the only well-established exceptions are:

• To preserve a legal privilege, such as:
  • Attorney–client privilege
  • Work product doctrine
  • Doctor–patient privilege
  • Constitutional rights (e.g., the Fifth Amendment)
• To enforce a court-ordered limitation on the scope of discovery (e.g., via a protective order)
• To prevent bad-faith or harassing questioning (though this is a narrow and risky path)

Attorneys must tread carefully. Instructing a client not to answer without a valid, articulable legal basis can result in motions to compel, court-ordered sanctions, or even professional discipline.

Case Study 1: Kellett v. Roberts, 276 Ill. App. 3d 496 (2d Dist. 1995)

Plaintiff was injured in a multi-car accident. Defendant brought a third-party complaint against another driver involved in the accident alleging negligence.

Defendant was deposed and submitted interrogatories to which the defendant objected to a question that asked for the factual basis for the allegations of the third-party complaint. Plaintiff filed a motion for sanctions pursuant to Illinois Supreme Court Rule 219(c). Plaintiff alleged that counsel for the defendant did not consult with the defendant about the allegations of the third-party complaint, that there was no factual investigation by counsel regarding the filing of the complaint, and that the third-party complaint was filed merely for delay and harassment. Plaintiff also alleged that defense counsel instructed defendant to refrain from answering questions to obstruct the plaintiff’s investigation.

Plaintiff requested that the court sanction the law firm and the attorney who signed the third-party complaint.

Ultimately, the court found that refusal to answer interrogatories and instruction to not answer relevant deposition questions is unreasonable and therefore sanctionable.

Outcome

The plaintiff moved for sanctions under Rule 219(c), and the court agreed:

• The refusal to answer relevant deposition questions and interrogatories was unreasonable
• The lack of factual investigation and the filing of baseless pleadings were sanctionable under Illinois Supreme Court Rule 137
• The court imposed sanctions on the law firm and attorney, reinforcing that misuse of discovery and obstruction of questioning are serious violations

Key Takeaway

Kellett stands as a clear warning: instructing a client not to answer deposition questions without legal justification can lead to significant sanctions.

Case Study 2: Hastings v. Gulledge, 272 Ill. App. 3d 778 (5th Dist. 1995)

Facts

In Hastings, the plaintiff was injured when a pickup truck struck the car in which she was a passenger. The jury awarded damages for medical expenses, lost wages, and pain and suffering but nothing for disability. On appeal, the plaintiff argued the verdict was inconsistent and also challenged the admission of the defense expert’s testimony.

While Hastings primarily focuses on the adequacy of a jury verdict, the court cited Rule 219(a) in affirming proper deposition procedures. The case highlights that when a witness refuses to answer a deposition question, the correct course is to:

1. Continue the deposition or suspend it
2. Provide notice
3. Move the court to compel an answer

Key Takeaway

Hastings reinforces that Rule 219(a) sets out a clear procedural remedy for refusals to answer deposition questions that are relevant to the matter at issue. The examining attorney must follow the rule, and the deponent’s attorney must tread carefully when considering whether to block a question.

Conclusion: A Narrow Lane for Objections

In Illinois, attorneys cannot freely instruct clients to remain silent during depositions. Rule 219 and courts interpreting it make clear that such instructions are only appropriate in narrowly defined situations, such as to:

• Protect privilege
• Comply with a protective order
• Halt abusive or harassing conduct (in rare cases)

Anything beyond that can be deemed unjustified and sanctionable.