Using Policy to Resolve the Circuit Split Over the Crime-Fraud Exception to the Attorney-Client Privilege
Author | Blake R. Hills |
Position | Prosecuting Attorney, Summit County Utah Attorney's Office |
Pages | 1-28 |
USING POLICY TO RESOLVE THE CIRCUIT SPLIT OVER THE CRIME-FRAUD EXCEPTION TO THE ATTORNEY-CLIENT PRIVILEGE BLAKE R. HILLS * I. I NTRODUCTION In early 2018, the FBI raided the office of the personal attorney for the President of the United States to look for evidence of illegal payments to an adult-film actress. 1 This action resulted in a legal dispute about whether the materials that were seized were protected by the attorney-client privilege or whether the crime-fraud exception to the privilege applied. 2 Although individual presidents and adult-film stars will come and go, the need for clear rules on the crime-fraud exception to the attorney-client privilege will not. Everyone who has watched a modern police drama is familiar with the pre-interrogation warning: “[y]ou have the right to remain silent and the right to talk to a lawyer,” from Miranda v. Arizona . 3 But what does the right to talk to a lawyer mean? Does it mean that a client has an absolute right to speak to a lawyer without the contents of that conversation ever being revealed? Or does it mean that the government can become privy to some attorney-client conversations? If the government can become privy to some conversations, what is the standard for determining when this should be allowed? * Prosecuting Attorney, Summit County Utah Attorney’s Office. J.D., S.J. Quinney University of Utah College of Law (1998). The views and opinions expressed in this article are solely those of the author and do not necessarily reflect those of the Summit County Attorney’s Office. 1 See Matt Apuzzo, F.B.I. Raids Office of Trump’s Longtime Lawyer Michael Cohen: Trump Calls It ‘Disgraceful’ , N.Y. TIMES (Apr. 9, 2018), https://www.nytimes.com/ 2018/04/09/us/politics/fbi-raids-office-of-trumps-longtime-lawyer-michael-cohen.html [https://perma.cc/RYA2-JMZQ]. 2 See Jan Wolfe, Factbox: How Does U.S. Attorney-Client Privilege Rule Apply to FBI Raid on Trump’s Lawyer? , REUTERS (Apr. 16, 2018), https://www.reuters.com/article/us-usa-trump-russia-privilege-factbox/factbox-how-does-u-s-attorney-client-privilege-rule-apply-to-fbi-raid-on-trumps-lawyer-idUSKBN1HN32R [https://perma.cc/M8QP-W66H]. 3 384 U.S. 436, 444 (1966) (holding that appropriate procedural safeguards are to be used to protect a suspect’s right against self-incrimination and to inform the suspect of the right to counsel). 2 CAPITAL UNIVERSITY LAW REVIEW [48:1 The United States Supreme Court answered some of these questions in United States v. Zolin . 4 Unfortunately, it failed to answer others. This has led to a split between the circuits, with varying answers to these questions. The resulting system of rules that depends on location suggests that the Supreme Court should provide further clarification of the law surrounding the crime-fraud exception to the attorney-client privilege. This Article proceeds in several parts. Part II contains an overview of the attorney-client privilege. Part III examines the Zolin decision, with discussion on what the Supreme Court did and did not say about the burden of establishing that the crime-fraud exception applies. Part IV surveys the split of authority amongst the federal circuit courts. Finally, Part V provides a suggestion of how the Court should answer the questions it failed to answer in Zolin in order to provide clear rules about the burden of establishing that the crime-fraud exception to the attorney-client privilege applies. II. A TTORNEY -C LIENT P RIVILEGE “The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.” 5 Indeed, “the privilege has been recognized . . . in the English common law since the sixteenth century and was” functioning “in American law” at the time of the founding. 6 In general, the privilege is as follows: (1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived. 7 The protections of the attorney-client privilege extend to oral communications, written documents, “and tangible objects [that are] conveyed by [a client] to an attorney in confidence for the purpose of [obtaining] legal advice.” 8 The protections also extend to “an attorney’s 4 491 U.S. 554, 572 (1989). 5 Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). 6 Eric D. McArthur, The Search and Seizure of Privileged Attorney-Client Communications , 72 U. CHI. L. REV. 729, 734 (2005) (footnotes omitted). 7 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 2292 (John T. McNaughton ed., 1961) (emphasis omitted). 8 Haines v. Liggett Grp. Inc., 975 F.2d 81, 90 (3d Cir. 1992) (citation omitted). 2020] CRIME-FRAUD EXCEPTION 3 advice [to the client given] in response to [these] disclosures.” 9 However, a client cannot “ shield otherwise discoverable documents from disclosure by including an attorney on a distribution list” because “the fact that an attorney either is copied on or is one of multiple recipients of [a communication] does not on its own support a claim of attorney-client privilege.” 10 “Although the privilege belongs to the client, and only the client may waive it, an attorney may assert the privilege on the client’s behalf.” 11 The main rationales for the existence of the attorney-client privilege, much like those for the right to counsel itself, implicate basic concerns of fairness. These rationales are: First the law is complex and in order for members of the society to comply with it in the management of their affairs and the settlement of their disputes they require the assistance of expert lawyers. Second, lawyers are unable to discharge this function without the fullest possible knowledge of the facts of the client’s situation. And last, the client cannot be expected to place the lawyer in full possession of the facts without the assurance that the lawyer cannot be compelled, over the client’s objection, to reveal the confidences in court. 12 Indeed, an attorney’s ability to responsibly counsel a client “would be undermined if an attorney had to caution a client about revealing relevant circumstances lest the attorney later be compelled to disclose those circumstances.” 13 While the attorney-client privilege “has not been elevated to the level of a constitutional right,” it “is key to the constitutional guarantees of the right to effective assistance of counsel and a fair trial.” 14 Of course, the attorney-client privilege is not unlimited. For instance, the privilege is subject to the crime-fraud exception, which applies when an attorney-client communication takes place in order to further a crime or 9 United States v. Bauer, 132 F.3d 504, 507 (9th Cir. 1997) (citation omitted). 10 U.S. ex rel. Barko v. Halliburton Co., 74 F. Supp. 3d 183, 188–89 (D.D.C. 2014) (footnote omitted). 11 Haines , 975 F.2d at 90 (citation omitted). 12 1 KENNETH S. BROUN ET AL., MCCORMICK ON EVIDENCE § 87 (7th ed. 2016). 13 Schaeffler v. United States, 806 F.3d 34, 40 (2d Cir. 2015). 14 United States v. Neill, 952 F. Supp. 834, 839 (D.D.C. 1997) (citations omitted). 4 CAPITAL UNIVERSITY LAW REVIEW [48:1 fraud. 15 “Since the policy of the privilege is that of promoting the administration of justice, it would be a perversion of the privilege to extend it to the client who seeks advice to aid him in carrying out an illegal or fraudulent scheme.” 16 Indeed, “[a]dvice given for those purposes would not be a professional service but participation in a conspiracy.” 17 It should be noted that the crime-fraud exception has been applied to actions that may not be considered traditional “crimes” or “frauds.” For instance, the crime-fraud exception has been characterized as being applicable when work or communication occurred “in furtherance of a crime, fraud, or other type of misconduct fundamentally inconsistent with the basic premises of the adversary system.” 18 Thus, courts have held that the exception is applicable to obstructing court orders, 19 a patent applicant’s deceptive conduct, 20 spoliation of evidence, 21 conspiracy to violate an attorney’s duty to maintain confidences of former clients, 22 intentional infliction of emotional distress, 23 and ex parte communication “with an adversary . . . represented by counsel.” 24 It is against this background that the Supreme Court issued its Zolin decision. III. U NITED S TATES V . Z OLIN The Zolin case began when the Church of Scientology brought a civil suit in Los Angeles County Superior Court against “one of its former 15 Clark v. United States, 289 U.S. 1, 15 (1933) (“The privilege takes flight if the relation is abused. A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law.”). 16 1 JOHN W. STRONG, MCCORMICK ON EVIDENCE § 95 (5th ed. 1999). 17 Id. 18 In re Sealed Case, 676 F.2d 793, 812 (D.C. Cir. 1982). See also Sound Video Unlimited, Inc. v. Video Shack, Inc., 661 F. Supp 1482, 1486 (N.D. Ill. 1987) (“The attorney-client privilege does not apply when the person consults an attorney to further a continuing or future crime, fraud, or other misconduct.”). 19 See In re Icenhower, 755 F.3d 1130, 1141 (9th Cir. 2014). 20 See Certusview Techs., LLC v. S&N Locating Servs., LLC, 198 F. Supp. 3d 568, 577– 78 (E.D. Va. 2016) (citation omitted). 21 See Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 282–83 (E.D. Va. 2004). “Spoliation is ‘the willful destruction of evidence or the failure to preserve potential evidence for another’s use in pending or future litigation.’” Id. at 281 (citation omitted). 22 See Madanes v. Madanes, 199 F.R.D. 135, 149 (S.D.N.Y. 2001). 23 See Diamond v. Stratton, 95 F.R.D. 503, 505 (S.D.N.Y. 1982). 24 See NXIVM Corp. v. O’Hara, 241 F.R.D. 109, 135 (N.D.N.Y. 2007). 2020] CRIME-FRAUD EXCEPTION 5 members...
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