A sacrosanct concept in law is the attorney-client privilege—that a client can speak to his or her attorney knowing full well that what the client says will be kept secret. The evidentiary privilege ensures free and frank communications between attorney and client, a reality that generally serves the public interest.
John Henry Wigmore, the first full-time dean of Northwestern University School of Law and author of the leading treatise Wigmore on Evidence, famously wrote that this was “the oldest of the privileges for confidential communications.” Similarly, ethics expert Geoffrey C. Hazard Jr. wrote in a 1978 law review article that the attorney-client privilege is “indispensable to the lawyer’s function as advocate.”
However, there are limits.
One of the key limits is the so-called crime-fraud exception—that the attorney-client privilege can be pierced if the client intentionally seeks the attorney’s advice to further the commission of criminal or fraudulent activity. U.S. Supreme Court Justice Benjamin Cardozo famously explained in United States v. Clark (1933): “There is a privilege protecting communications between attorney and client. 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. He must let the truth be told.” Decades later, the Supreme Court said in U.S. v. Zolin (1989), “It is the purpose of the crime-fraud exception to the attorney-client privilege to assure that the ‘seal of secrecy’ between lawyer and client does not extend to communications ‘made for the purpose of getting advice for the commission of a fraud’ or crime.”
The crime-fraud exception has hit front headlines recently, most notably with cases involving former President Donald Trump and some of his lawyers, past or present. One of those from front-page headlines is the case involving the former president’s alleged misuse of classified documents that were located in his Florida Mar-a-Lago estate. In that case, according to ethics expert Peter Joy of the Washington University School of Law in St Louis, “The special counsel presented enough evidence that Trump committed the crime through his attorneys or with his attorneys’ assistance, and that led the judge to find that his communications with his lawyer lost attorney-client privilege due to the crime-fraud exception.”
But Trump is not the only high-profile defendant in cases involving the crime-fraud exception. “Over the last few years, there has been an increasing suspicion that lawyers are assisting high-profile clients with lawbreaking,” says Thomas Lininger, a professor at the University of Oregon School of Law who has written on the crime-fraud exception. “The Trump investigations are an important part of the story, but they’re not the whole story. There were other high-profile cases in which attorneys or commentators discussed the potential value of the crime-fraud exception. Examples include the investigations of Paul Manafort, Jeffrey Epstein and Harvey Weinstein,” he adds.