By Sharon L. McCarthy and Daniel C. Davidson
New York Law Journal
September 15, 2023
“Attorney-client privilege is dead!” So declared then-President Donald Trump in a tweet after a 2018 law enforcement raid on his former lawyer Michael Cohen’s office. In fact, various investigations into the former president demonstrate that attorney-client privilege is not dead, but rather the crime-fraud exception to that privilege lives on.
Crime-Fraud Exception
Attorney-client privilege is “the oldest of the privileges for confidential communications known to the common law.” Upjohn Co. v. United States, 449 U.S. 383,389 (1981). The privilege generally protects from disclosure: (1) confidential communications; (2) made between lawyers and their clients; (3) for the primary purpose of obtaining legal advice. The privilege is not all-encompassing: for example, it only protects from discovery communications themselves, not the underlying facts. Further, the privilege can be waived if the communications are disclosed to a third party.
While attorney-client privilege is a bedrock principal of the American legal system, so too is the crime-fraud exception. Indeed, the crime-fraud exception was recognized in English law as early as the mid-18th century. The crime-fraud exception holds that attorney-client privilege does not protect communications between a lawyer and client when the client’s purpose is to further a future crime or fraud.
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