The crime-fraud exception to attorney-client privilege: As an attorney, you may not anticipate it applying to your emails, your letters or your advice to your client. But even if you never see it coming, your client’s intentions in obtaining legal advice may expose your communications to disclosure. A law firm is experiencing this problem firsthand in a series of high-profile cases involving Facebook, Mark Zuckerberg and a former business partner. The cases present an interesting study in how the crime-fraud exception can operate.
But first, what is the crime-fraud exception? Simply stated, it is an exception to the attorney-client privilege that applies to communications when two conditions are met: (1) the client is committing or intends to commit a fraud or crime and (2) the attorney-client communications are in furtherance of that alleged crime or fraud. Importantly, the crime-fraud exception can apply even if counsel is unaware that the advice is being sought for an improper purpose. It is the client’s intent, not the attorney’s, that controls the analysis.
