AbleToTrain by Willing & Able

The Attorney-client Privilege – Crime-fraud Exemption

Not all interactions with attorney-clients are privileged.

Many correspondence between clients and their attorneys are shielded by the attorney-client privilege. But, based on the crime-fraud exception to the privilege, if she made it with the intention of committing or covering up a crime or fraud, a client’s contact to her lawyer is not privileged.

As the right of the attorney-client belongs to the client, the intent of the client determines whether the exception applies. Many courts would extend the exemption even though the attorney has no knowledge of the alleged crime or fraud, and did not engage in it.

The exception to crime-fraud applies if:

-the consumer has been in the process of committing or planning to commit a crime or act of fraud, and

-the client has approached the prosecutor with a view to furthering, or covering up, the crime or fraud.

Not Just Violence

The crime-fraud exemption in some states is not limited to crimes and fraud; it also exists when a civil tort is the target of the client. For instance, if a landlord requested advice about illegally evicting a tenant, the exception may apply.

Notice that certain offences are also crimes, but two examples are assault and trespassing. So, even in a state where the client’s goal must be illegal in order to extend the crime-fraud exemption, it can be caused by something that also happens to be a tort.


Fraud and Crimes

Whether the crime-fraud exemption applies depends on the content of the contact and its meaning. The exception provides information on a number of crimes and frauds, including (to name only a few):

-“suborning perjury” (asking a prosecutor to present testimony that she knows is false) damaging or concealing witness tampering facts, and concealing revenue or properties.



Perhaps the most significant consideration of the crime-fraud exemption is whether the contact at hand relates to a mistake in the past or a mistake in the present or future. There are almost always privileged communications about past crimes and frauds, but communications about existing or future ones are typically not.

However, it should be noted that many courts differentiate between current and future intent, and are more inclined to enforce the exception when the intention is present. Usually, the exception does not apply if the client is simply requesting guidance on the effects of a potential future action. Not unexpectedly, there can be a hazy line between present intent and potential future intent. Ultimately, it could be up to a judge to determine if the client was going to commit a crime, or was simply asking about the repercussions of any potential action that he may or may not take.


Compulsory Disclosure

The prosecutor can subpoena the attorney if the crime-fraud exemption applies and compel him to reveal the contents of the correspondence in question. But certain cases ethically require lawyers to reveal correspondence, aside from the crime-fraud exception. They face administrative penalties, and potentially criminal charges, if lawyers don’t. The following examples are included:

Perjury. If the counsel learns that a witness is about to give perjured evidence, or has given it, she must warn the court.

Crucial evidence. The attorney can have to turn it over if the client gives the attorney a vital piece of evidence.

Missing person. The attorney will have to reveal it if the client tells the attorney the location of a missing witness or victim whose life is in immediate danger.

Risks. The prosecutor might have to disclose the threat if the client tries to injure anyone, for example, a witness, attorney or judge.

Most states authorize, or require, lawyers to reveal client-learned knowledge that prevents death or serious injury. Some have a similar law that it can avoid or redress financial harm due to a crime or fraud to disclose otherwise confidential information.

The rules of state ethics dictate the communications lawyers must report, and they can differ slightly. But these laws appear to include policies aimed at limiting the amount of details revealed by the lawyer. The concept is to allow sensitive details to be reported while minimizing the degree to which the client is accused by the lawyer.


State Variations and Professional Assistance

There are differences in the attorney-client privilege from state to state, both in state and federal courts, although there are several parallels. The right is influenced by proof law, laws, and court rulings, and determines whether the crime-fraud exception applies. Since the crime-fraud exception is accepted by every state, when and how it operates can vary considerably.

Although there are some rules of thumb, whether the exception applies almost always revolves around the basic details of each situation. Clients and prospective clients should rely on a lawyer’s instructions on which messages would be privileged.