§38.11 EXCEPTIONS

• Jurisdiction: United States

§38.11. EXCEPTIONS

There are several well-recognized exceptions to the attorney-client privilege.

[A] Crime-Fraud Exception

The privilege does not apply when the client seeks legal assistance in order to commit future criminal or fraudulent acts.¹⁰⁴ "It is the purpose of the crime-fraud exception to the attorney-client privilege to assure 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 crime."¹⁰⁵ It is the client's intent, not the attorney's, that is determinative.¹⁰⁶ "The privilege is not lost if the client innocently proposes an illegal course of conduct to explore with his counsel what he may or may not do. Only when a client knowingly seeks legal counsel to further a continuing or future crime does the crime-fraud exception apply."¹⁰⁷ The scope of the exception is often uncertain.¹⁰⁸

When a party opposing the assertion of the privilege alleges that the attorney-client communication involved future illegal acts, the trial court must decide if the crime-fraud exception applies. The Supreme Court, in United States v. Zolin,¹⁰⁹ held as a matter of federal common law that the trial judge could review in camera allegedly privileged communications to determine whether they fell within the crime-fraud exception. To obtain such review, the party opposing the privilege "must present evidence sufficient to support a reasonable belief that in camera review may yield evidence that establishes the exception's applicability."¹¹⁰ The Court also held that, under Rule 104(a), the trial court may consider the allegedly privileged communications in determining whether the threshold showing for in camera review has been satisfied.¹¹¹ The quantum of evidence needed to overcome the privilege was left undecided by the Court.¹¹²

[B] Joint Clients

An exception for joint representation is widely recognized in situations where two clients subsequently disagree and litigation ensues — e.g., clients A and B retain an attorney to draw up a partnership agreement, and they later have a dispute that results in a lawsuit. The privilege does not apply in later litigation between the joint clients; in that situation, one client's interest in the privilege is counterbalanced by the other's interest in being able to waive it.¹¹³ The communications, however, remain privileged from disclosure at the insistence of outsiders.¹¹⁴

Joint defense. This exception should be distinguished from "joint defense" situations, in which attorneys for two different clients confer for the purpose of advancing the same defense.¹¹⁵

[C] Breach of Duty by Attorney or Client

In some cases, a client's assertion of a claim, counterclaim, or affirmative defense that places an otherwise privileged matter at issue may be deemed a limited exception ("waiver").¹¹⁶ This exception applies to a malpractice suit against the attorney or in an action by an attorney against the client for the collection of legal fees. Most often, it applies when a defendant raises an incompetence-of-counsel claim in post-conviction criminal cases.¹¹⁷ The waiver is limited.¹¹⁸Moreover, The prosecution should not be permitted to use the information in a retrial.¹¹⁹

[D] Claimant through Same Deceased Client

"Normally the privilege survives the death of the client and may be asserted by his representative. When, however, the identity of the person who steps into the client's shoes is in issue, as in a will contest, the identity of the person entitled to claim the privilege remains undetermined until the conclusion of the litigation. The choice is thus between allowing both sides or neither to assert the privilege, with authority and reason favoring the latter view."¹²⁰

[E] Document Attested by Lawyer

The privilege does not apply where the attorney also acted as a subscribing witness.¹²¹ When a testator uses his attorney as a subscribing witness to his will, the attorney should be treated like any other subscribing witness. The only...