In my last post I argued that the crime-fraud exception to
attorney-client privilege is really a very different thing when it is cited to by police or prosecutors before
the crime has been committed from when it is resorted to in post-crime
litigation. It follows that the elements of the exception should be different
in the two different settings – if there should be a post-crime exception at
all.
A particular case, suggested but not developed in that post,
dramatizes the point:
Suppose that a client talks to her lawyer about how to act
on information that the client has reliably received that someone else is about
to commit a serious crime. The client may want to know whether he commits a
crime if he doesn’t inform to the police, whether he could have any civil
liability for not informing, or perhaps for informing if he turned out to be
wrong. The client is seeking advice so as to behave lawfully. The lawyer gives
advice accurately and in full compliance with the ethical guidance of the
profession. In compliance with a request from her client, she does not inform
the police.
A legal assistant, having accidentally overheard a part of
the conversation, does, however, inform.
On that basis a warrant is sought for a search of the lawyer’s files for
documents related to the client in question from the date of the conference.
If what the assistant overheard indicates that the intended
crime of the third party is a serious one, and probable, the warrant should issue.
Had the third party been in a hurry and committed the crime while
the warrant application was being written up, the prosecutor might still
subpoena these same lawyer files into the grand jury. The subpoena, however, should be quashed on
motion of the conference lawyer on behalf of her client. There is now no good
theory for invading the attorney-client privilege. It will not prevent a crime.
The conference in no way enabled or aided a crime. The client and lawyer both conducted
themselves within the law, and with no culpable intent. There is simply no way that
the lawyer-client communications were tainted by crime or criminal intent. The
client did nothing to forfeit the privilege.
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