An exception to the attorney-client privilege

By Diane Karpman

Karpman

Lawyers' minds are implanted with certain connected ideas in law school. For example, if you hear the term "offer," you immediately think about "acceptance." If you hear "attorney-client privilege," you almost automatically think about the "crime fraud" exception.

A client is not permitted to claim the privilege if the lawyer's advice was sought in furtherance of intended or continuing criminal activity. Obviously, this doesn't apply to past crimes or frauds, or clients could never obtain legal defense for their past acts.

For the crime fraud exception to apply, the lawyer need not be aware of the illegality. All that is required is that the communication did further, or was intended to further, the illegal activity. Actually, lawyers are often the last to know, since we are frequently peppered with innocuous questions and can't "connect the dots." Therefore, it is the client's knowledge and intentions that are controlling in the application of the crime fraud doctrine, and the crime doesn't have to be completed.

Our ethics rules are client-centered and designed to equalize the presumed unfair advantage lawyers have over clients. However, often our clients are far more sophisticated than we are. Remember that when we were in law school studying torts, some of our clients were in the street gaining first-hand experience in crimes.

The crime fraud exception to the privilege "protects against abuse of the attorney-client relationship." In re Napster (2007 9th Cir.) 479 F. 3d 1078, 1090. When a client seeks advice to assist him in committing a crime or a fraud, he cannot expect the court to support his claim of privilege.

Until recently, the protocols for a claim of crime or fraud in a civil case were ill-defined when outright disclosure of the information is sought. This is vastly different from an in camera review, where the privilege can remain protected, as opposed to being stripped away in an outright disclosure where the privilege will be irreparably lost.

The crime fraud exception involves a two-step process. The party claiming the exception must make a prima facie showing of a violation that is sufficient to defeat the claim of privilege. And, there must be a showing that the attorney's assistance was obtained in furtherance of the criminal or fraudulent activity. In Napster, the court said that the party asserting the privilege must then be given an opportunity to present evidence and argument in support of the privilege claim. The prima facie showing of fraud or crime is not the slam-dunk end of the issue.

Of course, there could also be another privilege claim in the lawyer's arsenal – work product (CCP 2018). Significantly, the crime fraud exception to attorney-client privilege does not apply to attorney work product. State Compensation Insurance Fund v. The Superior Court of Los Angeles (2001) 91 Cal. App. 4th 1080. Work product may be the stronger claim, because it can be absolute. Often lawyers will claim both and figure it out later.

• Diane Karpman, a legal ethics expert, can be reached at 310/887-3900 or at karpethics@aol.com.