The Crime-Fraud Exception to the Attorney-Client Privilege
The attorney-client privilege protects most communications between clients and their lawyers. But, according to the crime-fraud exception to the privilege, a client’s communication to her attorney isn’t privileged if she made it with the intention of committing or covering up a crime or fraud.
Because the attorney-client privilege belongs to the client, the client’s intent determines whether the exception applies. Most courts will apply the exception even if the attorney had no knowledge of, and didn’t participate in, the actual crime or fraud.
The crime-fraud exception applies if:
~ the client was in the process of committing or intended to commit a crime or fraudulent act, and
~ the client communicated with the lawyer with intent to further the crime or fraud, or to cover it up.
Not Just Crime
In some states, the crime-fraud exception isn’t limited to crimes and fraud; it also applies where the client’s object is a civil tort. For example, the exception could apply if a landlord sought advice about unlawfully evicting a tenant.
Note that many torts are also crimes—assault and trespassing are but two examples. So, even in a state where the client’s objective must be criminal in order for the crime-fraud exception to apply, something that also happens to be a tort may trigger it.
Crimes and Frauds
Whether the crime-fraud exception applies depends on the content and context of the communication. The exception covers communications about a variety of crimes and frauds, including (to name just a few):
~ “suborning perjury” (asking an attorney to present testimony she knows is false)
~ destroying or concealing evidence
witness tampering, and
~ concealing income or assets.
Mandatory Disclosure
If the crime-fraud exception applies, the prosecution can subpoena the attorney and force him to disclose the contents of the communication in question. But, apart from the crime-fraud exception, some situations ethically require lawyers to disclose communications. If lawyers don’t, they risk disciplinary sanctions, and possibly criminal charges. Examples include the following.
~ Perjury. If the attorney knows a witness is about to give, or has given, perjured testimony, she must inform the court. (Importantly, though, this obligation may not apply if the perjuring witness is the client. See I told my lawyer I’m planning on telling a lie on the stand. What will happen?)
~ Crucial evidence. If the client gives the attorney a crucial piece of evidence, the attorney may have to turn it over.
~ Missing person. If the client tells the attorney the location of a missing witness or victim whose life is in imminent danger, the attorney may have to disclose it.
~ Threats. If the client threatens to harm someone—for instance, a witness, attorney or judge—the lawyer may have to report the threat.