USA Law and Practice Contributed by: Steven Molo, Robert Kry, Megan Cunniff Church and Walter Hawes, MoloLamken
6.2 Undermining the Privilege Over Communications Exempt From Discovery or Disclosure Despite the broad discovery procedures avail - able in civil litigation in the United States, a foundational principle of the legal system is that the attorney-client privilege protects from dis - closure of confidential communications between attorneys and clients made for the purpose of seeking or providing legal advice. This privilege promotes open and honest communication between attorneys and their clients. Attorney work product – documents containing an attorney’s thoughts, impressions, opinions and legal conclusions – is also protected from discovery in most situations, although to a lesser extent than an attorney-client communication. The work product doctrine also provides protec - tion for materials prepared by or for a party in anticipation of litigation. The Crime-Fraud Exception The attorney-client privilege does not apply to communications between the lawyer or client made for the purpose of committing or continu - ing a crime or fraud. This is known as the “crime- fraud exception” , and it prevents the abuse of the attorney-client privilege that would other - wise undermine the administration of justice. The same exception applies, in most respects, to the work product doctrine as well. Courts construe the crime-fraud exception nar - rowly. The party invoking it must show two ele - ments: • the existence of a future crime or fraud; and • that the communication or work product was made to further or induce that future crime or fraud.
To determine the existence of a future crime or fraud, courts consider factors including: • whether the client was planning a criminal or fraudulent act when they sought the legal advice; • whether the client committed or attempted to commit a crime or fraud after receiving the advice; • whether the lawyer who provided the advice also engaged in misconduct in connection with the topic of the advice; and • whether the evidence shows the elements of a crime or fraud that was ongoing or immi - nent at the time of the communication. The second element – whether the communica - tion was made to further or induce the illegal act – often turns on the client’s intent in com - municating with their attorney. The crime-fraud exception applies even if the attorney had no knowledge of the client’s intent when the com - munication was made. With respect to work product protection, the exception applies where the work product was created in aid or further - ance of criminal or fraudulent activity. The crime-fraud exception may apply within the context of the litigation itself. For example, if a party to litigation represented through counsel that it could not find documents that had been requested in discovery, and that statement is revealed to be a misrepresentation, the oppos - ing party may seek discovery into matters that would otherwise be protected from disclosure. In that scenario, a court may find a waiver of the attorney-client privilege with respect to the party’s communications with counsel regarding the preservation, destruction or location of the documents.
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