The crime-fraud exception to the attorney-client privilege does not apply in a case involving the Louisiana Public Records Act according to a recent appeals court decision. In Lewis v. Crochet, the U.S. Court of Appeals for the Fifth Circuit rejected a plaintiff’s attempt to compel attorneys to produce privileged documents from a 2013 investigation conducted by a university, clarifying important boundaries of the attorney-client privilege. ABA Litigation Section leaders agree with the Fifth Circuit’s ruling.
The litigation arose from allegations the plaintiff, among other things, both experienced and witnessed multiple instances of racist and sexual misconduct from a university’s former head football coach. She further asserted that she received reports of sexual harassment from the student workers under her supervision. The plaintiff contended that she reported these complaints to the leaders of the university’s athletics program but often saw no action taken in response.
The dispute over privilege emerged after the plaintiff requested documents concerning a 2013 Title IX investigation into sexual harassment claims against the coach. At the time of her request, the documents were in the possession of the law firm that oversaw the investigation. In response to the plaintiff’s request, the university asserted the attorney-client privilege. The plaintiff invoked the crime-fraud exception in response. She claimed the defendant was using its attorneys to fraudulently conceal the documents in violation of Louisiana Public Records Act, which prohibits the concealment of public records.
The U.S. District Court for the Middle District of Louisiana sided with the plaintiff and ordered the disclosure of the documents. The district court found that the university’s board members decided to retain the documents at their attorneys’ offices to prevent the plaintiff’s name “from becoming public information.” It interpreted the testimony to mean that the board acted to stop the investigation itself from becoming public in violation of the Public Records Act. Ultimately, the district court concluded that the plaintiff established the required prima facie case to invoke the crime-fraud exception. The attorneys for the defendant appealed the district court’s ruling.
The Fifth Circuit reversed. It found the district court misinterpreted the board member’s testimony, resulting in an erroneous determination that the plaintiff established a prima facie case for the crime-fraud exception. It decided that the testimony indicated that the Board decided to preserve the unredacted copies of the documents at their attorney’s offices to “protect the name of the young lady and to stop it from becoming public information.” Therefore, it held the preservation of the documents was not aimed at obstructing the investigation from becoming public record. The Fifth Circuit determined that, but for the district court’s improper interpretation, there was no evidence demonstrating actual concealment of the alleged public records through the attorney-client relationship.
Additionally, the appeals court determined that the attorney-client communications in question did not qualify as public records. This conclusion was based on Louisiana courts’ interpretation of a provision of the Public Records Act that excludes attorney-client communications from the law. Furthermore, the Fifth Circuit noted that, in addition to the attorney-client privilege, the documents were also exempt from disclosure due to the student’s request invoking a privacy exemption under the Public Records Act.
Litigation Section leaders agree with the Fifth Circuit’s decision. “The ruling reflects a necessary approach to ensure that the attorney-client privilege is not easily undermined,” concludes Jarvarus A. Gresham, Atlanta, GA, Co-Chair of the Litigation Section’s Sound Advice Subcommittee of the Pretrial Practice & Discovery Committee.
The Fifth Circuit’s decision is instructive as to how attorneys can safeguard the attorney-client privilege. “Lawyers must be aware of the public records laws in their states and make sure they are handling confidential documents in accordance with those laws,” states Junaid Odubeko, Nashville, TN, Co-Chair of the Section’s Privacy & Data Security Committee.
Leaders contend that specific facts were pivotal to the decision. “I believe if the documents at issue were proven to clearly be public documents, the court likely would have opined that the crime-fraud exception applied,” says Odubeko. “The lynchpin of the court’s reasoning was that just because the documents were treated confidentially did not mean that intent to fraudulently conceal the documents existed,” he adds.
Leaders do not believe that the decision fundamentally changes how lawyers should advise their clients, but that it does reinforce certain principles. “This ruling reiterates the importance of careful handling of privileged communications during investigations,” states Gresham. “Importantly, it emphasizes the need for clear protocols to maintain confidentiality while complying with public records laws,” he adds. Odubeko shares similar sentiments, noting that, “the ruling shows that courts, particularly appellate courts, will be very careful in applying exceptions to the attorney-client privilege because they want to promote fulsome discussions between lawyers and their clients.”
