April 08, 2014 Articles

No Attorney-Client Privilege for You: The Crime-Fraud Exception

One of the most critical and time-honored tenets of law is not absolute

By Adam D. Fuller, Elizabeth Shively Boatwright, and Bryan E. Meek

The attorney-client privilege is one of the oldest privileges in law. Without such a privilege, clients may not feel compelled to fully and openly communicate with their attorneys. The privilege is not absolute, however, and there are certain exceptions that allow the opposing side access to communications that would normally be protected. One such exception, known as the crime-fraud exception, involves communications in furtherance of a contemplated or ongoing crime or fraud.

The crime-fraud exception was first recognized in the United States over one hundred years ago, and the policy behind it is well-defined. (The crime-fraud exception was first recognized in the United States in Alexander v. U.S., 201 U.S. 117, 121 (1906).) The legal community does not deem discussions concerning future wrongdoings, such as fraud, that occur during an attorney-client communication worthy of protection. Id. at 562–63.  While the practice of law encourages full and frank communications between the attorney and client, only communications concerning past wrongdoings are protected.

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