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.
Here’s the obvious: to invoke the attorney-client privilege, the communication must be made to, or in the presence of, the client’s attorney. But things become murky when you have to decide whether that attorney is actually acting as an attorney when the communication is made—an issue that comes up frequently when dealing with in-house counsel.