“Attorney-client privilege is dead!” So declared then-President Donald Trump in a tweet after a 2018 law enforcement raid on his former lawyer Michael Cohen’s office. In fact, various investigations into the former president demonstrate that attorney-client privilege is not dead, but rather the crime-fraud exception to that privilege lives on.
Crime-Fraud Exception
Sharon L. McCarthy
Attorney-client privilege is “the oldest of the privileges for confidential communications known to the common law.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). The privilege generally protects from disclosure: (1) confidential communications; (2) made between lawyers and their clients; (3) for the primary purpose of obtaining legal advice. The privilege is not all-encompassing: for example, it only protects from discovery communications themselves, not the underlying facts. Further, the privilege can be waived if the communications are disclosed to a third party.
Daniel Davidson
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