Colorado's Crime-fraud Exception to the Attorney-client Privilege
| Publication year | 1994 |
| Pages | 2315 |
| Citation | Vol. 23 No. 10 Pg. 2315 |
1994, October, Pg. 2315. Colorado's Crime-Fraud Exception to The Attorney-Client Privilege
Communications between attorney and client made for the purpose of furthering the commission of a future or present crime or fraud are not protected by the attorney-client privilege.(fn1) This doctrine is known as the crime-fraud exception to the privilege. Although the doctrine is generally recognized in state and federal courts, its contours are subject to substantial jurisdictional variation.(fn2) It has been adopted in Colorado for crimes and civil fraud.(fn3)
There is nothing startling about the substantive law of the crime-fraud exception. Few people, if any, would argue that the attorney-client privilege should be used to generate or perpetuate wrongful conduct.(fn4) However, procedural and evidentiary rules governing availability of the exception pose difficult problems for the litigator who is trying to overcome a claim of privilege.(fn5) The primary problem is one of proof. If the only evidence of crime or fraud is subject to a claim of privilege, how is the exception invoked? More precisely, how can the privileged information be used to prove a party's right to be able to use it? This article discusses the current Colorado rules.
There is wide latitude in the case law regarding the kinds of conduct that may vitiate the privilege.(fn6) Most courts limit the scope of the exception to crime or civil fraud.(fn7) Others have written of a "crime or tort" exception(fn8) and of "crime, fraud and other type[s] of misconduct fundamentally inconsistent with the basic premises of the adversary system."(fn9) The current Colorado rule is limited to criminal and fraudulent conduct. However, the Colorado Supreme Court has not decided whether the exception extends to tortious conduct other than fraud.(fn10)
Although it is settled that the proponent of the exception has the burden of establishing it,(fn11) the issue of how much evidence will meet that requirement is still unresolved. Courts addressing this issue most often rely on dicta from the 1933 case of Clark v. United States:
There must be a showing of a prima facie case sufficient to satisfy the judge that the light should be let in. . . . To drive the privilege away, there must be "something to give color to the charge;" there must be "prima facie evidence that it has some foundation in fact." When that evidence is supplied, the seal of secrecy is broken.(fn12)
Unfortunately, in this context, prima facie is almost a meaningless term. While mere allegations will not win the day,(fn13) "precedent may be found to support nearly any position on the requisite amount of evidence needed to support a prima facie showing under the crime-fraud exception."(fn14) Representative examples include: "good cause" supported by a "colorable showing";(fn15) actual occurrence;(fn16) "foundation in fact";(fn17) "reasonable basis to suspect";(fn18) "substantial doubt";(fn19) and "probable cause."(fn20)
Two important issues remain. The first is what kind of evidence is available to prove the exception. The second is what procedures are appropriate to a fair and reasonable presentation of that evidence.
If there is an abundance of evidence of crime or fraud independent of the privilege, the case for the crime-fraud exception should be made with relative ease. However, what happens when the available evidence coincides with or is closely circumscribed by the evidence subject to a claim of privilege? In that circumstance, it will be necessary to use allegedly privileged evidence to show that the privilege should not apply. Thus, "in giving practical application to the [crime-fraud exception] rule 'the secret must be told in order to see whether it ought to be kept.'"(fn21) At some point, the policy considerations favoring confidentiality must give way to the need for disclosure so that "the truth be told."(fn22)
In recent years, many courts have approved in camera review as a tool for resolving the conflict.(fn23) However, this trend has created new questions regarding (1) what initial showing must be made in order to obtain review and (2) what evidence is available to meet that threshold.(fn24)
The first issue has to do with what must be proved and the degree of certainty that must be achieved.(fn25) The second issue addresses the kind of evidence that may be used to obtain in camera review: whether all of the evidence must be independent of that which is claimed to be privileged or whether allegedly privileged material can be used regardless of whether there is independent evidence of crime or fraud.
The task presented the courts is that of developing procedures and clearly articulating evidentiary standards in order best to complement the policies behind the exception. Opinions of the Colorado Supreme Court have been consistently in the vanguard. Even in Colorado, however, there remain interpretive problems, requiring reconciliation of three influential cases: A. v. District Court,(fn26) Caldwell v. District Court,(fn27) and Law Office of Bernard D. Morley v. MacFarlane.(fn28) The decision of the U.S. Supreme Court in United States v. Zolin(fn29) also should be considered.
In A. v. District Court, petitioners raised the issue of whether the trial court...
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