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Orlando Criminal Defense Lawyer / Blog / Criminal Defense / Exceptions To Attorney-Client Privilege: Crime-Fraud Exception Explained

Exceptions To Attorney-Client Privilege: Crime-Fraud Exception Explained

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Attorney-client privilege is a fundamental legal concept that promotes open and honest communication between attorneys and their clients. It ensures that confidential information shared by a client with their attorney cannot be disclosed without the client’s consent. However, this privilege is not absolute. One of the most significant exceptions is the crime-fraud exception, which prevents the privilege from being used to shield ongoing or future criminal or fraudulent conduct.

Consult an Orlando criminal defense attorney to explore the crime-fraud exception in detail, how it is applied, and its implications for both clients and attorneys.

What is Attorney-Client Privilege?

Before delving into the exception, it’s important to understand the general rule of attorney-client privilege. This privilege applies when:

  1. A communication is made between an attorney and their client.
  2. The purpose of the communication is to seek or provide legal advice.
  3. The communication is intended to be confidential, meaning it is not shared with third parties who would destroy the confidentiality.

When these conditions are met, the privilege protects the communication from being disclosed in court or to third parties.

The Crime-Fraud Exception: An Overview

The crime-fraud exception allows courts to bypass attorney-client privilege if the client is using—or has used—the attorney’s services to further an illegal or fraudulent act. In other words, communications between a client and an attorney are not protected if they are made in furtherance of a crime or fraud.

This exception is crucial in ensuring that legal privilege cannot be exploited to hide criminal activities. It recognizes that while legal advice is protected, it cannot be used as a tool to facilitate wrongdoing.

Key Elements of the Crime-Fraud Exception

For the crime-fraud exception to apply, prosecutors or opposing parties typically must prove two elements:

  1. There was an intent to commit a crime or fraud: The exception applies if the client had a criminal or fraudulent intent when communicating with the attorney. Importantly, it is not necessary to show that the crime or fraud was actually committed—only that the communication was intended to further such conduct.
  2. The communication was in furtherance of the crime or fraud: The communication must directly relate to advancing or facilitating the illegal or fraudulent activity. General discussions about past crimes or advice on legal consequences are not sufficient to trigger the exception.

Examples of the Crime-Fraud Exception

Here are some scenarios where the crime-fraud exception might apply:

  • Concealing Assets: A client seeks legal advice on how to structure transactions to hide assets during a bankruptcy proceeding.
  • Perjury: A client informs their attorney of their intent to lie under oath and seeks advice on how to avoid detection.
  • Fraudulent Business Practices: A business owner consults an attorney on how to draft misleading contracts intended to defraud investors.

In each of these cases, the privilege could be pierced because the client’s intent was to use the attorney’s advice to commit or continue illegal conduct.

How Courts Determine the Application of the Exception

Courts apply a high standard when deciding whether to invoke the crime-fraud exception, as it involves overriding a critical legal protection. Generally, the party seeking to invoke the exception must present prima facie evidence—sufficient evidence to support a reasonable belief that the privilege is being misused.

Courts typically use a two-step process:

  1. Review of Evidence: The court examines the evidence provided by the party seeking to invoke the exception to determine whether it meets the threshold.
  2. In Camera Review: If the initial evidence is sufficient, the court may conduct an in camera review, meaning it privately reviews the privileged communications to assess whether they were indeed used to further a crime or fraud.

Implications for Clients and Attorneys

The crime-fraud exception has significant implications for both clients and attorneys:

For Clients

Clients should understand that while most communications with their attorneys are protected, this protection has limits. Attempting to use an attorney’s services to further illegal or fraudulent activities can result in losing privilege and potentially facing additional legal consequences.

For Attorneys

Attorneys must be vigilant in recognizing when a client’s requests may cross the line into illegal conduct. Ethical rules prohibit attorneys from assisting clients in committing crimes or fraud. If an attorney becomes aware of such conduct, they may need to withdraw from the representation and, in some cases, report the activity.

Preventing the Crime-Fraud Exception from Being Triggered

Both clients and attorneys can take steps to avoid situations where the crime-fraud exception might apply:

  • Clients should be honest with their attorneys and seek advice on lawful strategies rather than attempting to involve the attorney in illegal conduct.
  • Attorneys should establish clear boundaries and ensure they are providing legal advice that complies with ethical and legal standards.
  • Documentation of intent can help attorneys defend against accusations of facilitating crime or fraud. Keeping detailed records of consultations and the legal advice provided can be critical if the privilege is challenged.

Contact The Baez Law Firm

The crime-fraud exception plays a vital role in balancing the protection offered by attorney-client privilege with the need to prevent abuse of the legal system. While the privilege is a cornerstone of the attorney-client relationship, it cannot be used as a shield for illegal activities.

If you or your business is facing legal issues involving privileged communications or allegations of fraud, it’s essential to seek skilled legal counsel. At The Baez Law Firm, our experienced attorneys are well-versed in handling complex legal matters, including cases involving privilege and fraud allegations.

If you have concerns about attorney-client privilege or need representation in a case involving fraud or criminal charges, contact The Baez Law Firm today. Our dedicated team will guide you through every step of the legal process and work tirelessly to protect your rights. Call us now for a consultation.

Sources:

iadclaw.org/defensecounseljournal/privilege-pierced-by-ongoing-or-future-wrongful-conduct-the-crime-fraud-privilege-exception-is-broader-than-you-think/

law.cornell.edu/wex/attorney-client_privilege

americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_6_confidentiality_of_information/comment_on_rule_1_6/

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