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Business Crimes BulletinFeaturesLitigationWhite Collar Crime

Pitfalls of the Attorney-Client Privilege

By Jonathan S. Feld and Lisa M. Burnett
October 01, 2022

The attorney-client privilege is fundamental. It protects communications: 1) made in confidence; 2) by a client; 3) to an attorney; 4) for the purposes of securing legal advice or assistance. In re Grand Jury Subpoena, 2 F.4th 1339, 1345 (11th Cir. 2021). However, its impenetrability is not absolute. Recent highly publicized criminal investigations and trials reinforce that the upsurge in investigations has led to increased scrutiny of these privileged communications.

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The Crime-Fraud Exception

The attorney-client privilege does not protect communications made "in furtherance of a crime or fraud." provided that: 1) a prima facie showing is made that the client engaged in criminal or fraudulent conduct, or planning such conduct; and 2) the attorney's assistance was obtained, knowingly or not, in furtherance of the criminal or fraudulent activity. U.S. v. Zolin, 491 U.S. 554 (1989) (upholding in camera review when crime/fraud exception is alleged). A key component is that the privileged communication must "further" a crime or fraud.

The crime/fraud exception has received renewed notoriety recently. A few months ago, in Eastman v. Thompson, No. 8:22-cv-00099 (C.D. Cal. Order re Privilege of Documents issued Mar. 28, 2022), the Select Committee (Committee) for the U.S. House of Representatives requested allegedly privileged emails by former Chapman University law professor and Trump attorney John Eastman in connection with the January 6 investigation. Finding that it was "more likely than not" that Trump "corruptly attempted to obstruct" the electoral vote count at the Jan. 6, 2021 Joint Session of Congress with Eastman, the federal district court invoked the crime/fraud exception. The result was that virtually all disputed documents were disclosed. The crime/fraud exception does not require the attorney, here, Eastman, to be charged with any criminal acts although news reports referred to his about central role.

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