How does the crime-fraud exception to attorney-client privilege apply?
The attorney-client privilege is defined as “[a] client’s right to refuse to disclose and to prevent any other person from disclosing confidential communications between the client and the attorney” and is invoked when the client is seeking legal advice. Essentially, the attorney-client privilege protects the confidentiality of communications between lawyers and their clients in order to encourage clients to make “full and frank” disclosures to their attorneys, who are then better able to provide candid advice and effective representation.
The privilege belongs to the client and can only be waived by the client. However, there are some exceptions to the attorney-client privilege that would allow an attorney to disclose confidential communications to third parties without the client’s waiver, including the “crime-fraud exception.” Under the crime-fraud exception, the attorney-client privilege cannot be invoked if a lawyer and their client are allegedly attempting to cover up or engage in a crime.
The U.S. Supreme Court has said that the crime-fraud exception to the attorney-client privilege assures that the “seal of secrecy” between lawyer and client does not extend to communications “made for the purpose of getting advice for the commission of a fraud” or other crime. United States v. Zolin, 491 U.S. 554, 563 (1989). Because the attorney-client privilege belongs to the client, the client’s intent determines whether the exception applies. Most courts will apply the exception even if the attorney had no knowledge of, and didn’t participate in, the actual crime or fraud.
In federal court, the crime-fraud exception can be used by prosecutors to compel the testimony of an attorney to disclose confidential communications with her client when the client is being investigated for a crime, if the communications directly related to the crime being investigated. This is what is currently being argued for in Washington, D.C., in the federal grand jury’s investigation of Donald Trump’s alleged obstruction of justice.
Trump’s attorney had cited attorney-client privilege while previously appearing before the grand jury. Federal prosecutors argued that the attorney can be compelled to answer further questions pursuant to the crime-fraud exception and the district court judge agreed last Friday, ordering the attorney to hand over a number of documents, including handwritten notes and transcriptions of personal audio recordings, which are linked to what the judge described as Trump’s alleged “criminal scheme.”
Yesterday, the D.C. Circuit Court of Appeals stayed the judge’s order temporarily and set a midnight deadline to provide information and arguments related to the case, with the Department of Justice given until 6 a.m. Wednesday (today) to respond. A three-judge panel is likely to make a quick decision and, because the panel must necessarily determine whether Trump has committed a crime, a decision affirming the district court likely indicates that a federal indictment against Trump is imminent.