Exceptions to the attorney-client privilege in California are set out in Evid C §§956–962. Of particular interest since the FBI’s raid on the office of President Trump’s personal attorney Michael Cohen has been the crime-fraud exception to the privilege. Under this exception, there’s no attorney-client privilege “if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud.” Evid C §956. Let’s break that down into three keys points to know.
- The crime-fraud exception applies when a client is seeking attorney help in committing a future crime. The crime-fraud exception can be invoked only when the client seeks the attorney’s services to assist in the commission of a future crime. In other words, communications regarding a client’s past criminal acts remain protected by the attorney-client privilege. Also, “no exception was intended to apply to a statement of intent to commit a crime alone.” People v Clark (1990) 50 C3d 583, 621. This is why counsel should be very cautious any time a client talks about a potential future crime—the line between a general discussion and giving legal assistance in planning a crime isn’t always clear.
- The crime-fraud exception applies when the attorney is trying to prevent a crime. The attorney-client privilege doesn’t apply if the attorney reasonably believes that disclosure of a confidential communication is necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death or substantial bodily harm to another person. Evid C §956.5. For example, in People v Dang (2001) 93 CA4th 1293, 1298, a client who made threats against potential witnesses and his attorney wasn’t entitled to protect communications based on attorney-client privilege.
- Triggering application of the crime-fraud exception is a relatively high bar. A mere allegation of crime or fraud isn’t enough. Before a court will recognize the exception, a prima facie showing must be made that the client contemplated a crime or fraud. State Farm Fire & Cas. Co. v Superior Court (1997) 54 CA4th 625, 643. To make a prima facie showing, the individual invoking the crime-fraud exception must show that a reasonable person would have a reasonable basis to expect the perpetration or attempted perpetration of a crime or fraud. In re Grand Jury Proceedings (9th Cir 1996) 87 F3d, 377, 381.
Other CEBblog™ posts you may find useful:
- What’s NOT Protected by Attorney-Client Privilege?
- 7 Simple Rules To Preserve Attorney-Client Privilege
- Attorney-Client E-Communications
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