The attorney-client privilege is the oldest privilege of the common law and is designed to foster full and frank communications between clients and their attorneys.1 The privilege, however, is not absolute and does not apply where the communications are in furtherance of a crime or fraud. Last year, the U.S. Court of Appeals for the Third Circuit affirmed a decision of the U.S. District Court for the Eastern District of Pennsylvania that relied on the crime-fraud exception to compel an attorney to testify in a grand jury investigation into potential violations of the Foreign Corrupt Practices Act (FCPA).2 The district court did so after hearing in camera from the attorney about conversations he had with his former client, the president and owner of a consulting firm that allegedly had made corrupt payments in violation of the FCPA. On Nov. 10, 2014, the U.S. Supreme Court declined to review the Third Circuit’s decision.3
Background
On Jan. 6, 2015, the former client was indicted under the FCPA, among other statutes. The indictment alleges that he made corrupt payments totaling $3.5 million to the sister of a banker who worked at the London-based European Bank for Reconstruction and Development, a multilateral development bank owned by more than 60 nations, including the United States.4 The payments allegedly were intended to influence the banker’s review of financing applications submitted to the bank by two companies represented by the former client and his consulting firm.
