Shedding light on shady suits: applying the crime-fraud exceptions to the attorney-client privilege and work product doctrine to bad-faith litigation

• Author: Sabrina Parisi
• Pages: 447-479

NOTE

SHEDDING LIGHT ON SHADY SUITS: APPLYING THE CRIME-

FRAUD EXCEPTIONS TO THE ATTORNEY-CLIENT PRIVILEGE

AND WORK PRODUCT DOCTRINE TO BAD-FAITH LITIGATION

Sabrina Parisi*

INTRODUCTION

“[N]o reasonable person would conclude that the statements were truly state-

ments of fact.”

1

In stunning candor, Sidney Powell conceded that her accusations

against US Dominion, Inc. (“Dominion”)—that the voting machine supplier facili-

tated widespread voter fraud in the 2020 presidential election—had no basis in

fact, characterizing her statements instead as “vituperative, abusive and inexact”

political rhetoric.

2

Id. at 32 (quoting Watts v. United States, 394 U.S. 705, 708 (1969)). Powell raised this as a defense against

the $1.3 billion defamation suit filed by Dominion. See Debra Cassens Weiss, Sidney Powell Lawyers Argue No

Reasonable Person Would Have Accepted Her Stolen Election Claims as Fact, ABA J. (Mar. 23, 2021, 12:56

PM), https://www.abajournal.com/news/article/sidney-powell-lawyers-argue-no-reasonable-person-would-have-

accepted-her-stolen-election-claims-as-fact.

Powell’s striking admission underscores her awareness that, as

she and others clamored for courts to overturn the election, their claims similarly

lacked basis in fact.

The crime-fraud exceptions to the attorney-client privilege and work product

doctrine strip communications of their protection where the purposes of the privi-

lege and the doctrine are no longer served; that is, where a lawyer’s services are

enlisted “to enable or aid anyone to commit or plan to commit what the client

knew or reasonably should have known to be a crime or fraud.”

3

The exceptions

have famously been invoked to reveal, for example, Monica Lewinsky’s communi-

cations with her attorney during the preparation of Lewinsky’s affidavit denying

her sexual relationship with President Bill Clinton,

4

as well as Paul Manafort and

* Georgetown University Law Center, J.D. 2023. I would like to thank Professor Paul F. Rothstein, along with

my classmates in Professor Rothstein’s Advanced Evidence: Supreme Court and the Constitution seminar, for

thoughtful comments, questions, and suggestions that greatly improved this Note. © 2023, Sabrina Parisi.

1. Memorandum of Law in Support of Defendants’ Motion to Dismiss at 27–28, US Dominion, Inc., v.

Powell, 554 F. Supp. 3d 42 (D.D.C. 2021) (No. 1:21-cv-00040-CJN).

2.

3. Proposed Rule 503(d)(1) of the Federal Rules of Evidence, 51 F.R.D. 315, 362; see also PAUL F.

ROTHSTEIN & SYDNEY A. BECKMAN, FEDERAL TESTIMONIAL PRIVILEGES § 2:36 n.20 (2d ed. 2021); In re Grand

Jury Investigation, 399 F.3d 527, 532 (2d Cir. 2005) (“In 1972, the Supreme Court promulgated Federal Rules of

Evidence setting forth nine specific categories of privileges, including an attorney-client privilege. Proposed

Federal Rule 503, defining the privilege, . . . was not adopted by Congress, [but] courts and commentators have

treated it as a source of general guidance regarding federal common law principles.”).

4. See Lance Cole, Paul Manafort, Monica Lewinsky, and the Penn State Three Case: When Should the

Crime-Fraud Exception Vitiate the Attorney-Client Privilege?, 91 TEMP. L. REV. 555, 558 n.14 (2019).

447

Richard Gates’ communications with their attorney regarding materially false in-

formation provided to the Department of Justice.

5

The Trump campaign, Trump’s political allies, and Trump himself (collectively,

“the Trump team”) instigated sixty-two lawsuits nationwide to overturn the results

of the 2020 presidential election.

6

William Cummings, Joey Garrison & Jim Sergent, By the Numbers: President Donald Trump’s Failed

Efforts to Overturn the Election, USA TODAY (Jan. 6, 2021, 10:50 AM), https://www.usatoday.com/in-depth/

news/politics/elections/2021/01/06/trumps-failed-efforts-overturn-election-numbers/4130307001/.

Courts characterized the litigation—designed to

enlist the courts to disenfranchise millions of American voters and undermine the

integrity of the election process—as “largely hypothetical,”

7

based on “specula-

tion, conjecture, and unwarranted suspicion,”

8

See Debra Cassens Weiss, Judge Sanctions Pro-Trump Lawyers for Election Suit, Cites ‘Guesswork’

Affidavits and Unwarranted Claims, ABA J. (Aug. 26, 2021, 10:31 AM), https://www.abajournal.com/news/

article/federal-judge-ejects-claim-that-electronic-signature-protected-pro-trump-lawyers-issues-sanctions (citing

King v. Whitmer, 556 F. Supp. 3d 680, 689 (E.D. Mich. 2021)).

and a “vast conspiracy.”

9

Bad faith

is therefore palpable in these suits that tout baseless claims designed to deprive the

American public of the right to vote. Litigation so colored by bad faith constitutes

an abuse of the judicial process and is precisely the kind of fraud that should trigger

the crime-fraud exception.

This Note argues that the very act of conducting baseless litigation predomi-

nantly in bad faith—“bad-faith litigation” for short—constitutes a fraud on the

court and is therefore a “fraud” within the meaning of crime-fraud exceptions to

the attorney-client privilege and work product doctrine. Upon evidence that such a

fraud has been committed against the court, attorney-client communications and

attorney work product advancing the commission of the fraud should be revealed

through compelled disclosure.

Support already exists for this Note’s proposal. Courts possess an inherent

power to sanction bad-faith conduct, including bad-faith litigation.

10

Both the

Eleventh and Second Circuits have invoked the inherent power to trigger the

crime-fraud exception upon findings of bad-faith litigation. In JTR Enterprises, L.

L.C. v. Colombian Emeralds, the Eleventh Circuit, upon the district court’s finding

of a “massive fraud of the court,” upheld the invocation of the crime-fraud excep-

tion, “which would reveal existence of the fraud as well as efforts to conceal it.”

11

In In re Grand Jury Subpoenas Dated March 2, 2015,

12

the Second Circuit

5. Id. at 562–63.

6.

7. Election Integrity Project of Nev., L.L.C. v. Eighth Jud. Dist. Ct., No. 81847, 2020 WL 5951543, at *2

(Nev. Oct. 7, 2020).

8.

9. O’Rourke v. Dominion Voting Sys., Inc., 552 F. Supp. 3d 1168, 1175 (D. Colo. 2021).

10. In Hall v. Cole, the Supreme Court made clear that “‘bad faith’ may be found, not only in the actions that

led to the lawsuit, but also in the conduct of the litigation.” 412 U.S. 1, 15 (1973); see also JTR Enters., L.L.C. v.

Colombian Emeralds, 697 F. App’x 976, 986 (11th Cir. 2017) (“Bad faith exists where an attorney knowingly or

recklessly pursues a frivolous claim or needlessly obstructs the litigation of a non-frivolous claim.”) (The case

name has been corrected to “Colombian” within this Note because the case uses this spelling throughout with the

exception of its header, which uses “Columbian.”).

11. JTR Enters. L.L.C., 697 F. App’x at 988.

12. 628 F. App’x 13, 15 (2d Cir. 2015).

448 AMERICAN CRIMINAL LAW REVIEW [Vol. 60:447

affirmed an application of the crime-fraud exception to baseless litigation “carried

on substantially for the purpose of furthering the crime or fraud.”

13

Nevertheless,

most courts have declined to extend the exception to bad-faith litigation, finding

that the term “fraud” does not reach “wrongdoings that are not clearly criminal or

tortious.”

14

Consequently, communications or work product made in furtherance

of the Trump team’s dangerous and disingenuous election litigation would likely

remain privileged in most circuits.

15

In Part I, this Note begins by providing a brief overview of the attorney-client

privilege, work product doctrine, and the crime-fraud exceptions to both. It then

derives limiting principles from other contexts in which courts have dealt with

bad-faith litigation to avoid chilling legitimate suits resting on seemingly unsteady

ground. In Part II, this Note argues that bad-faith litigation fits comfortably within

the meaning of “fraud” for the purposes of the crime-fraud exception. In Part III, this

Note demonstrates that sanctioning bad-faith litigation in this manner is well within

courts’ inherent powers and consistent with the purposes of the attorney-client privi-

lege and work product doctrine. In Part IV, this Note presents cases in which courts

have already adopted the proposed use of the crime-fraud exception and argues that

the Trump team’s election litigation is similarly ripe for application. Finally, in Part

V, this Note proposes amended language to Proposed Rule 503(d)(1) of the Federal

Rules of Evidence, including a test for determining whether a party has engaged in

bad-faith litigation and a standard of proof necessary to invoke the crime-fraud excep-

tion. In sum, this Note will show that, faced with bad-faith litigation, courts have the

tools, the right, and the duty to invoke the crime-fraud exception.

I. BACKGROUND

A. The Attorney-Client Privilege and the Work Product Doctrine

The attorney-client privilege and work product doctrine are jealously guarded,

penetrated only in cases of waiver or where protecting the communication no lon-

ger serves a “public good transcending the normally predominant principle of uti-

lizing all rational means for ascertaining truth.”

16

The following sections outline

the general bounds of the privilege and the doctrine.

13. Id. at 15; see also ROTHSTEIN & BECKMAN, supra note 3, § 2:36 n.15.

14. ROTHSTEIN & BECKMAN, supra note 3, § 2:36.

15. On October 19, 2022, District Court Judge David O. Carter applied the crime-fraud exception to eight

emails related to President Trump and John Eastman’s election litigation strategy. Eastman v. Thompson, No.

8:22-cv-00099-DOC-DFM, 2022 WL 11030550, at *16–21 (C.D. Cal. Oct. 19, 2022), reconsideration denied,

No. SACV2200099DOCDFM, 2022 WL 17100471 (C.D. Cal. Oct. 28, 2022). Judge Carter’s decision rested on

his finding that the eight communications were “sufficiently related to and in furtherance of” the criminal

obstruction of the January 6 proceedings and a conspiracy to defraud the United States. Id. at *17–20. As this

Note will argue, Judge Carter’s decision to invoke the crime-fraud exception could have rested independently on

the ground that the Trump team’s fraudulent litigation constituted a fraud on the court.

16. Trammel v. United States, 445 U.S. 40, 50 (1980) (quoting Elkins v. United States, 364 U.S. 206, 234

(1960) (Frankfurter, J., dissenting)).

2023] SHEDDING LIGHT ON SHADY SUITS 449