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Business Crimes BulletinFeaturesLitigationWhite Collar Crime

Pitfalls of the Attorney-Client Privilege

By Jonathan S. Feld and Lisa M. Burnett
October 01, 2022

The attorney-client privilege is fundamental. It protects communications: 1) made in confidence; 2) by a client; 3) to an attorney; 4) for the purposes of securing legal advice or assistance. In re Grand Jury Subpoena, 2 F.4th 1339, 1345 (11th Cir. 2021). However, its impenetrability is not absolute. Recent highly publicized criminal investigations and trials reinforce that the upsurge in investigations has led to increased scrutiny of these privileged communications.

The Crime-Fraud Exception

The attorney-client privilege does not protect communications made "in furtherance of a crime or fraud." provided that: 1) a prima facie showing is made that the client engaged in criminal or fraudulent conduct, or planning such conduct; and 2) the attorney's assistance was obtained, knowingly or not, in furtherance of the criminal or fraudulent activity. U.S. v. Zolin, 491 U.S. 554 (1989) (upholding in camera review when crime/fraud exception is alleged). A key component is that the privileged communication must "further" a crime or fraud.

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