South Carolina BAR Journal
SC Lawyer, July 2011, #2.
Leave the Representation, Take the Cannoli: The Crime-Fraud Exception to the Attorney-Client Privilege and
South Carolina LawyerJuly 2011Leave the Representation, Take the Cannoli: The Crime-Fraud Exception to the Attorney-Client Privilege and The GodfatherBy Brian C. Gambrell One of my favorite movies/books is The Godfather by Mario Puzo. The movie version of the novel with Marlon Brando, Al Pacino, Robert Duvall, James Caan and Diane Keaton is considered by most movie critics as the finest movie ever made. It won three Oscars, including Marlon Brando's infamous "Sacheen Littlefeather" award for Best Actor. The story was continued in the sequel, The Godfather Part II. Robert De Niro made movie history with Brando for being the only actors to win the Academy Awards for Best Actor for playing the same character, Vito Corleone. The Godfather and The Godfather Part II are still the only movie and sequel to each win the Academy Award for Best Picture.
Among its numerous, compelling subplots is the relationship of the non-Italian Tom Hagen, played by Duvall, to his adopted family and the Italian-dominated criminal underworld in post World War II New York. In a masterful aside, it is Michael, played by Pacino, who explains to Kate, played by Keaton, how Hagen had come into the family. Hagen had been informally adopted into the Corleone family by Vito when Sonny (played as an adult by Caan) insisted the orphaned Hagen be given a home. The book elaborates the relationship between Vito and Hagen. Vito spent considerable money educating Hagen, sending him to law school and setting Hagen up in a law practice. Over the course of both movies, we see consigliere Hagen as an integral part of the Corleone criminal enterprise.
Many times Hagen's law practice or Hagen's status as a lawyer is used as a shield for criminal enterprise. In one famous scene, Hagen "represents" the Corleone family in threatening a movie executive on behalf of Corleone's godson, and the hapless movie executive ends up with a horse head as a bedmate when he is not otherwise persuaded. Hagen advises the Corleones on all aspects of their nefarious plans to either profit from various criminal enterprises or seek revenge on the Corleone's enemies.
While it makes for great cinema, the movie portrays a recurring misconception (even sometimes among lawyers) about the power and extent of the attorney-client privilege. The attorney-client privilege is not absolute. 1Under the "crime-fraud exception," the attorney-client privilege does not apply when a client seeks advice from a lawyer that will serve him in the commission of a crime or fraud. Clark v. United States ,289 U.S. 1, 15 (1933). It (hopefully) does not need to be said that lawyers cannot help their client gun down police captains or put a horse head in the bed of the opposing party. However, it is the subtleness of some situations that a lawyer should be especially wary.
Any communication relating to the commission of a crime has long been excluded from the attorney-client privilege. The crime-fraud exception to the attorney-client privilege provides that a client's communications with an attorney will not be privileged if made for the purpose of committing or furthering a crime or fraud. Id; In reGrand Jury Proceedings, 727 F.2d 1352, 1355 (4th Cir. 1984). The attorney-client privilege exists to promote "full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice." Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). However, the attorney-client privilege ceases to fulfill this role when the discussion turns to...