Crime-Fraud Exception: Stopping Crime and Prosecuting Crime

In my post “Trump, Cohen and the Crime-Fraud Exception to Attorney-Client Privilege,” 4/13/18, I opined that a lawyer’s informing her client that intended conduct was criminal could fall under the crime-fraud exception. I was mostly wrong as to the way the law is. As to the way the law of this privilege should be, it’s more complicated. 

The crime-fraud exception serves two purposes. The compelling purpose is the prevention of crime. The less compelling purpose is to get hold of a lawyer’s most confidential papers to convict her client.

My thesis here is that the pre-crime and post-crime crime-fraud exceptions should have very different rules – if there must be a post-crime exception at all.

Methodological-terminological clarification. The crime-fraud exception can be triggered by frauds and intentional torts, whether or not they could also be prosecuted as crimes, as well as by abuses of trust. It can be litigated in civil, as well as criminal courts. For simplicity, and because I don’t think it changes anything, I will here focus on criminal triggers of the exception and assume that litigation will be of criminal investigation or prosecution.

 Here is the part of my prior post that most clashes with the case law:
Case 1:

                C[lient]:  I am planning to do X (with details), would that be a crime?

                L[awyer]:  Yes. Don’t do X.
                C does X. 

I opined, in no uncertain terms, that this would fall within the crime-fraud exception, as it involved a future crime. A commentator tried to straighten me out, noting the desirability of encouraging clients to seek expert advice when in doubt about the legality of projected action. 

The commentator, whose legal acumen I have excellent reason to credit, cited environmental regulation as an area in which Case 1 sorts of discussion occur. It would be a shame were privilege law to fail to incentivize clients to inquire of lawyers the boundary between lawful and unlawful activity affecting the environment. The incentive is valuable enough to defray the cost of providing some shielding for the occasional client who elects, against advice of counsel, to cross over to the wrong side of that boundary. 

Consider, however, a case in which the environmental crime is a monstrous one, say a toxic chemical dump, threatening human health and even life.

Before the Crime

In addition, and this is crucial, suppose the legal issue arises before the crime, when it could still be prevented. Under these additional Case 1 assumptions, L may well be ethically permitted to go to the authorities. The ABA Model Rule 1.6 (b) decrees that a lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;

This provision, or something like it, has been adopted in most states. In some states the “substantial injury” to financial interests limitation is dropped from (2). 

In my response to the commentator on my prior post I implied that it follows that lawyer-client conversations revealing intended crimes must be within the crime-fraud exception, else lawyers could not ethically reveal them. That was wrong. Disciplinary rules specify that the lawyer can reveal, under the right circumstances, client secrets as well as attorney client privileged communications. Client secrets obviously aren’t required to undergo a change of status to not-a-secret before the lawyer is permitted to reveal them.  

What I am now going to argue is that the crime-fraud exception should apply in the (pre-crime) version of Case 1 under consideration. This is, first, because, although the lawyer’s being permitted to reveal privileged information will sometimes be enough to stop a planned crime, it won’t always be. 

L calls the police saying he wants to inform about a “very serious crime” that C has planned for next week.  L is directed to come the precinct station to meet with a detective at 4 pm.  Unfortunately, crossing to the precinct station, L is struck and killed by a hit and run driver who bystanders say aimed right at L. The car, stolen at 3:30, is found two blocks away, wiped clean of prints.

The police seek a warrant to seize any of L’s notes of meetings with C or memoranda by L concerning C, both limited to the last month. 

As it happens, this took place in California, where the codification of the crime-fraud exception is:

There is no privilege under this article if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud. California Evidence Code section 956.

The warrant judge acknowledges that the application establishes probable cause to believe that a serious crime is in immediate prospect and that L’s papers would contain information that would permit police to prevent that crime. (If we don’t have quite enough to satisfy you on these points, were you the judge, please feel free to aid the prosecutor by supplementing the warrant application.) 

The judge next raises attorney client privilege. She assumes that the memoranda sought will record in whole or part communications between lawyer and client for the purpose of giving and receiving legal guidance. She does not have any direct information about whether C went into any conference or conferences with L with intent to commit a crime. She is, however, willing to infer such intent from L’s statement to the police that, as of the time L called, C was planning to commit a serious crime. 

She next asks the prosecutor, however, how she can possibly find the crime-fraud exception where she has absolutely no evidence that L communicated anything to C that would aid C in the commission of the crime.

P:   Your honor, such communication is reasonably inferable. C must have had some reason for discussing the intended crime with L, and what other reason could there be but getting some information from L that would aid him in committing the crime?

J:    Well, he might just have been asking if X is illegal or he might have been asking if L would represent him on the criminal case if he gets caught or if L would recommend some lawyer who would represent him, or whether C would be able to vote in the company board meetings by proxy if he were arrested. The conference might have been about any of these and I don’t see that any of them would have aided C in committing the crime.

P:   Well, surely knowing that X is illegal would cause C to do X in as surreptitious a way as possible, or maybe do X so that it looked accidental, or so that the responsibility for it could be shifted to someone else. Maybe C could even gin up some kind of justification or excuse for X. Knowing that proposed financial or environmental conduct is unlawful is often of the very greatest aid to the perpetrator in planning how to carry it out.

J:    Well, that may sometimes be. Even if your application gave me more reason to suppose that X was that sort of crime for which that makes sense, I believe our case law rules out taking pure advice on legality to constitute aid within the meaning of Section 956. Getting advice as to whether something is legal or illegal is the chief thing we want to encourage with our attorney-client privilege.

P:   We don’t have to show that L’s advice to C would actually aid him, as the cases construe “aid,” but only that he sought such aid. C may have been hoping that L would volunteer other details beyond the bare legality or illegality of X, for example, whether X would likely be investigated, whether it would be prosecuted by agents with knowledge of the industry or by general purpose detectives. Who knows what aid C might have been hoping for?

J:    I, for one, don’t know, and it is your application that is supposed to supply me with that information. 

P:   Surely, in a case like this when human life may well be at stake, we don’t need to establish the details of the specific sort of aid that C was seeking from L. 

J:    It sounds as if you are asking me to read “sought or obtained to enable or aid” out of the statute altogether. You want me to construe it so that it is going to be met in every case, or at least every serious case.

P:   Not in every case your honor. If I were seeking attorney files in prosecution of crime committed last year, I would expect to have to produce more of a showing that the lawyer’s advice linked to the crime – that it aided the client in committing the crime and was sought for that purpose. In a post-crime setting I would expect to have more evidence on that point. But here, where, human life may be at stake …

J:    Thank you, but I do not need to be reminded of the seriousness of our situation. But I cannot ignore the statute and the case law interpreting it. 

P:   But isn’t all that crime-fraud exception case law from litigation after the crime had been committed?  We are in completely different water here. 

J:    Well, give me some case law from the water we are in, otherwise I have to rely on the language of the statute and what interpretation we have, even if it be maritime distinguishable.

P:   If we are wrong, then what we seize will be suppressed in any subsequent prosecution of C. After all, that is the procedural setting from which all the case law arises. So those interests are all adequately met. But at least give us what we need to try to stop C now. 

J:    I can see I am not going to sleep tonight whatever I decide. I am not going to grant your application, however, as I do not think you have made a Section 956 showing that C sought information that would enable or aid him in committing a crime.

If the literary device that I use here to introduce the above dialogue, the lawyer’s demise, strikes you as too artificial to be worth much consideration, I offer the second way in which a search and seizure or subpoena attempt might ignite a crime-fraud exception dispute.  The lawyer is permitted, but not, so far as I know, in any state required to turn in the client at least for most crimes and frauds. Not every mob lawyer and not even every business lawyer is more committed to the public good than to his client's good. So L above may not have called the police, but instead been speaking a little too loudly in a restaurant where a police officer, reporter, or civic minded citizen picked up enough to supply the prosecutor with the information in the warrant application. 

However the application arises, the judge has a real problem. The problem exists because the crime-fraud exception has, I think, largely taken shape in the setting of post-crime litigations, not occasions when crime could be stopped or prevented. Formulations of the exception emphasize features that make lawyer-client conferences, normally favored and protected by the law, so very disfavored that the other side can be afforded free access to them in litigations against the client. The “elements” of the exception go to the idea that lawyer consultation was tainted or abused rather than that it surfaced information of preventable future crime.  (The theories of abuse or taint supporting legal disfavor will be discussed shortly.)

Pre-crime, where the purpose of citing the crime-fraud exception is to stop or prevent crime, the “aid” of “seek to aid” requirement should be dropped altogether. Any client intent requirement should be replaced by a requirement that there is a reasonably high probability at the time the exception is invoked that the client (or someone else) is committing a crime or intends to commit a crime. 

There should be an additional requirement that the communication sought will probably aid the authorities in stopping or preventing the crime and that the probability of their succeeding in stopping or preventing is reasonably high, though the greater the seriousness of the crime, the lower that probability need be. (Any real chance a mass murder can be stopped is good enough.) There should be a lower threshold of seriousness below which the exception ought not apply at all. We wouldn’t want to infringe on the attorney-client privilege to prevent an infraction, probably not a lesser misdemeanor.

It may be that there will be relatively few occasions for turning to a pre-crime branch of the crime-fraud exception, even were the law modified to fit it for that use. We can hope that any intending mass murderers who share their plans with their counsels will get turned in by said counsels. (Even here, however, my proposal has an advantage. The lawyer who does this, if the crime-fraud exception applies, will still be able to say, “I would never violate the attorney-client privilege.” On what seems to be the generally existing state of the law on the exception now, she can only say, “I would only violate the attorney-client privilege where the existing lawyer disciplinary rules permit me to.” I am not sure that declaration is as comforting to the client.)

The cases in which a pre-crime exception could be of real use are not limited to cases of planned mass murder, which we can hope will remain fairly rare despite recent events.  There are, as you read this, however, not a few ongoing financial crimes, crimes of official corruption, and racketeering crimes, among others, that might be stopped by gaining access to selected attorney-client communications. There may be no other probable way of stopping some of these crimes.  Mob lawyers do not have a very good record of ratting out their clients. A branch of the crime-fraud exception geared specifically to the continuing crime and pre-crime setting would be more than an academic exercise.

Why the pre-crime requirements for the crime-fraud exception should be different, and in important respects less demanding, than the post-crime exception will become clearer when we take a look at the purposes of the post-crime branch and the theories supporting it.

After the Crime

The key purpose of the crime-fraud exception pre-crime is clear and compelling: To stop ongoing crime or prevent future crime. What the exception accomplishes post-crime is to allow the prosecutor (or sometimes a civil litigator) to set aside the attorney client privilege and discover confidential communications between client (typically the criminal defendant) and his lawyer. The prosecutor gets a leg up, and the confidence of clients that they can talk freely to their lawyers take a hit. Why should this privilege, that we think of as so important, be lost in post-crime litigation?

The Crime-Extended Theory

Suppose that a lawyer and a client conspired together to violate election law, perhaps by making an illegal or unreported payment of an expense chargeable to a presidential campaign. Conversations in which they planned this crime would not be privileged even if they substantially involved the giving and receiving of legal advice. They would not be within the attorney-client privilege because the conversations themselves would constitute the crime of conspiracy or would be steps in furtherance of the conspiracy. Crimes are not privileged. 

When a lawyer gives legal advice that the client makes substantial use of in planning and carrying out his crime, perhaps by avoiding a higher grade felony or an action that would trigger federal jurisdiction, the conference need not itself be criminal. It will not constitute the crime of conspiracy if the lawyer agrees to nothing. A perfectly innocent lawyer, giving absolutely proper legal advice, may nonetheless contribute significantly to a client’s criminal scheme. As the prosecutor in above dialogue pointed out, sometimes it really helps a criminal to know the law.

The lawyer-client conference that has a substantial effect on the way a crime is carried out  might be said to be a “proto-crime” or part of the “extended crime.”  In any event, it is crime-involved. There is reason for society to view legal conferences bent towards criminal ends in a negative light. Isn’t it natural for the law to disfavor these abused lawyer communications by creating a crime-fraud exception?

Formulations of the crime-fraud exceptions growing out of the Crime-Extended Theory will include the requirement that the client was enabled or aided by the lawyer’s advice. It is not essential on this theory that the client came into the conference with intent to commit a crime – or even that he left it with that intent. He, as well as his lawyer, may have been innocent throughout. It is enough if the client later decides to commit the crime and then designs his criminal activity on the basis of what the lawyer told him, e.g., again,  by avoiding actions that would increase potential penalties or that would bring on federal involvement.

Suppose a formulation of the crime-fraud exception, requires only that aid in committing a crime be sought. Then the lawyer’s advice need not actually be crime-helpful. This would be the natural reading, for example, of the California crime-fraud exception statute. Where the formulation turns on the client’s state of mind with respect to aid rather than the receiving of actual aid, then the formulation would be responsive to a second theory.

The Guilty Mind Theory

On this theory it is not so much that the conference is tainted by crime as that the client is unworthy of the privilege. People who enter into an activity with the intent to abuse it towards unlawful ends might reasonably expect not to enjoy any legal protections that normally accompany that activity. So it is not entirely implausible that the client who goes to his lawyer with the intent to make use of legal advice to commit a crime might be said to forfeit the normal privilege of the lawyer’s conference room. 

The Combined Theory

There may be some apprehension that neither the Crime-Extended nor Guilty Mind theories is an adequate basis for stripping clients of their attorney-client privilege. Perhaps if the two are put together, it will seem enough to take away so important a right. On the combined theory the privilege will only become unavailable post-crime if the attorney-client communication is deemed to be both a part of the crime-extended and the client deemed to have criminal intent in participating.

It is possible to widen the application of formulations of the crime-fraud exception growing out of the Combined Theory by requiring only that at some point in the conference the client have the criminal intent and by not requiring that the client actually be aided in the crime or its attempt or a conspiracy towards it, but only that what the lawyer communicated would be expected to aid or would aid other perpetrators similarly so placed. (If this particular client already knew how to avoid federal jurisdiction, information to that effect might yet count as “aid” by definition.)  This broadening of the crime-fraud exception would, however,  involve some weakening of the connection of the exception with the underlying theories.

How Compelling Are the Post-Crime Crime-Fraud Exception Theories?

I am no great fan of any of these theories justifying a crime-fraud exception applied post-crime. The “tainted” giving and receiving of legal advice between lawyer and client, not rising to the level of solicitation, conspiracy, or any other crime, ought not, I think, lose its attorney-client privilege. The prosecutor ought not use what amounts to a notion of legal purity as a weapon against defendants.
As already noted, simply answering such questions as “is X lawful,” seems never to trigger the crime-fraud exception, even though it may be of the greatest aid, even to the most committed of evildoers. This makes it a little hard to give a coherent statement to the Crime-Extended Theory. Perhaps it is not causal contribution towards the crime that engenders the fatal taint in a client conference, but causal contribution sufficiently different from the contribution that would be made by neutral, unelaborated, statements of the form “X is lawful” or “X is unlawful.” This can perhaps be worked out, but it won’t be easy.

The wrong state of mind of the client in conversation with the lawyer before the crime dooms the attorney-client privilege per the Guilty Mind Theory, but immediately after the crime has been committed the most depraved of criminals will enjoy a fully protected conference with his lawyer. The post-crime client is hardly a more deserving character than the pre-crime client. After all, he has committed one more crime. Why is there a privilege destroying taint in the one case and not in the other?

Conclusion

There is strong reason for the crime-fraud exception only when it is applied pre-crime to stop or prevent crime. Post-crime applications are supported by theories of questionable coherence. If the attorney client privilege as important to a fair, rights-protective, legal system as tradition has it, then these rationalizations for the post-crime exception are woefully inadequate. Yes, it sometimes allows us to convict bad guys that would otherwise go free. So would torture.

Still, the post-crime use of the exception will, no doubt, survive. It is far too well established in law and prosecutorial practice to be given up. The best we can probably hope for is a stingy application of the exception post-crime, with rigorous methodological protections, in particular requiring “outside evidence,” that is, evidence not derived e.g. from the seized lawyer files themselves. These methodological protections, at least, seem to be the trend in federal cases.  

Appendix: A Crime-Fraud Exception for Other Privileges Post-Crime?

The suspect finds out from his doctor that his occasional skipped heart beats are of no concern. He asks, “So I could safely climb The Tooth?” Doctor: “Absolutely.”  In client’s subsequent prosecution for pushing another climber off the summit of The Tooth, one of many local peaks, client denies even having hiked in that vicinity in the last two years. Eyewitness evidence of his being the person who was on the summit with the victim comes from a couple of hikers who were some distance away and is of only middling strength.   

Should the doctor be required to testify over a claim of physician-patient privilege?  The prosecution asserts that the doctor’s cardiac clearance was crucial to the defendant’s decision to climb The Tooth. Therefore, that conference was part of the “crime-extended,” nullifying the doctor-patient privilege. Does it make a difference if the defendant had a climbing murder in mind when he asked about his heart?

The defendant, also before the tragedy on The Tooth, blurted out to psychiatrist or confessor that, “I sometimes feel an urge to climb up and push someone off The Tooth. Do you think I should give up climbing?” Either confessor or psychiatrist might have responded with advice that climbing was OK, so long as he did penance and prayed to be free of sinful thoughts or so long as he followed some prescribed exercises to minimize violent ideation. The defendant, the prosecution alleges, would never have considered climbing again had he not received this advice.  Does this make it part of the extended crime so as to dissolve the priest-penitent or psychotherapist-patient privilege?