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. INTRODUCTION

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 polic e 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 expr essed 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 ‘Disgrace ful’, 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 proce eds 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. ATTORNEY-CLIENT PRIVILEGE

“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).