6-3 Exceptions

• Jurisdiction: United States

6-3 Exceptions

There are at least three exceptions to the attorney-client privilege that are relevant to a legal malpractice action: (1) the defense exception; (2) the common interest exception; and (3) the crime-fraud exception.

6-3:1 Defense

The defense exception to the attorney-client privilege provides that "[t]here is no lawyer-client privilege under this section when . . . [a] communication is relevant to an issue of breach of duty by the lawyer to the client or by the client to the lawyer, arising from the lawyer-client relationship."³⁶

6-3:2 Common Interest

The common interest exception to the attorney-client privilege reads as follows:

A communication is relevant to a matter of common interest between two or more clients, or their successors in interest, if the communication was made by any of them to a lawyer retained or consulted in common when offered in a civil action between the clients or their successors in interest.³⁷

The common interest exception was examined in Cone v. Culverhouse.³⁸ The court held that the prism through which this exception must be examined is "from the perspective of an objectively reasonable client, not from a particular client's subjective expectations or from the attorney's perspective."³⁹

The client who sued her attorneys for negligence and intentional infliction of emotional distress in Richard Mulholland and Associates v. Polverari⁴⁰ requested production of every "authority to represent" agreement between the law firm and its clients for a five-year period. The court issued a protective order in lavor of the law firm because the "representation agreements between . . . [the attorneys] and their other clients are not related to any pending claim or defense, nor was the information shown to be reasonably calculated to lead to the discovery of admissible evidence."⁴¹

6-3:3 Crime-Fraud

To invoke the crime-fraud exception, the party seeking to use the exception must first establish prima facie evidence that the client sought the advice of counsel to procure a fraud.⁴² Although the boundaries of the exception are hard to navigate,⁴³ constructive fraud is typically applied in the context of a fiduciary relationship. Constructive fraud can be established by misrepresent at ion, concealment, or taking improper advan-tage.⁴⁴

The crime-fraud exception allowed the deposition of a lawyer to proceed in Niles v. Mallardi.⁴⁵ The lawyer was accused of intentional interference with an expectancy and a breach of fiduciary duty. The exception was found applicable due to allegations that the lawyer had assisted in the diversion of assets to an unintended party.⁴⁶ The court relied on a previous jury finding that the diverting party had breached her fiduciary duty and interfered with an inheritance.⁴⁷

The...