Crime-Fraud Exception to Attorney-Client Privilege

You’ve probably heard attorney-client privilege discussed in popular police procedural shows and movies. This privilege is one of the oldest in our jurisprudence and a foundational rule protecting confidentiality in the relationship between lawyers and clients. However, some exceptions to attorney-client privilege exist that potential clients need to know when communicating with their lawyers.

Attorney-Client Privilege Has Limits

You may not know that attorney-client privilege has some exclusions, one of the most important being the crime-fraud exception. California Evidence Code Section 956 explains there “is no privilege under this article if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud.”  This means attorney-client privilege does not extend to communications made by a client to their lawyer if the communications intend to further or cover up a crime or fraud.

The client’s intent is a crucial factor in whether the exception applies. Even if the attorney had no knowledge of a crime or fraud and didn’t participate, the communications between them and a client aren’t privileged if the client was in the process of committing a crime or fraudulent act or intended to do so.

When Does the Crime-Fraud Exception Apply?

A client’s communication with their attorney would fall under the crime-fraud exception if they discuss with their attorney their intent to do any of the following:

• Suborn perjury (i.e., conspiring with witnesses to lie during testimony)
• Tamper with witnesses
• Destroy or hide evidence
• Falsify or conceal information

Many tort offenses can result in both criminal and civil liability, and the crime-fraud exception can also be triggered in these cases.

The Crime’s Timing Matters

An important caveat to the crime-fraud exception is whether the communication refers to a past crime or an ongoing or future one. In most cases, the exception only applies to present or future crimes, while communication about past crimes is protected under attorney-client privilege. In other words, clients can expect confidence when discussing previous criminal activity with their attorney but can’t exploit the privilege to further or accomplish a crime.

As mentioned earlier, criminal intent also affects whether the exception applies. If a client seeks counsel about the consequences of a potential future action, the exception may not apply since their purpose is not fully formed. However, the exception applies if a client intends to commit or cover up a crime.

What Happens When the Crime-Fraud Exception Applies?

If an attorney hears communication where the crime-fraud exception applies, they can be subpoenaed to disclose the contents, or they may be ethically required to disclose the communication. Many states compel attorneys to disclose information revealed through client communication that would prevent death or injury to someone else. An attorney may also be required to disclose information that would prevent financial damage resulting from a crime or fraud.

Other situations where an attorney may be required to disclose communications are those regarding:

• Perjury — if an attorney knows a witness plans to perjure themselves or has given perjured testimony, they must inform the court. However, they may not have to notify the court of perjured testimony given by their client — instead, they should withdraw from representation.
• Missing persons —  if a client reveals the location of a missing witness or victim, their attorney may have to disclose the information.
• Threats — if a client threatens to harm someone else, their attorney may have to report the threat.
• Key evidence — if a client gives their attorney a key piece of evidence, they may have to turn it over.

Questions about the Crime-Fraud Exception? Call McElfresh Law Today

Courts are generally reluctant to break attorney-client privilege, and the crime-fraud exception is narrow. The exception exists to keep clients from exploiting the attorney-client relationship to perpetrate crime, and it hinges on the facts and circumstances of each case.

McElfresh Law has built a reputation for successfully helping clients navigate California’s criminal justice system. If you’re facing criminal charges and want to speak with a skilled and experienced San Diego criminal attorney, call us today at (858) 756-7107 or reach out online for a free consultation of your case.

Your consultation is confidential, and Attorney McElfresh will advise you on how attorney-client privilege applies to the communications in your case.