The attorney-client privilege is a shield in legal matters that protects most communications between clients and their legal representation. However, according to the crime-fraud exception to the privilege, communication between a client and their attorney isn’t a privilege if they made it with the intention of going through with a crime or trying to cover it up.
Even political and government-related cases are subject to the same attorney-client privilege expectations the public faces. Since attorney-client privilege belongs to the client, their intent determines whether the exception listed above applies. Most courts will indeed apply the exception even if the attorney had no working knowledge of the actual crime or fraud in question.
The crime-fraud exception applies if the client was in the process of committing or was intending to commit a crime and if the client communicated with their legal representation with their intent to further the crime, or even try to cover it up.
In some states, this exception isn’t limited to crimes and fraud as it can also apply where the client’s object is a civil tort. Many torts are also deemed to be crimes, such as assault and trespassing. Even in a state where the client’s sole objective must be criminal, something that’s also considered a tort may end up triggering it.
Attorney Malpractice Insurance
Typically, in these kinds of scenarios, the attorney will become subject to their own scrutiny related to their level of participation or knowledge. Even if accusations turn out to not be true or are unfounded, litigation and the act of going through a case on their own can be expensive and time-consuming.
Coverage such as attorney malpractice insurance will help to provide financial help when attorneys find themselves in the middle of their own legal issues. Attorney malpractice insurance is one way to protect finances and reputation while everything gets ironed out.
Crime and Fraud
The crime-fraud exception depends on the content and context of communications when it comes to figuring out if it applies. The exception covers communications related to a myriad of crimes and frauds, including suborning perjury (asking an attorney to present testimony that’s known to be false), destroying evidence, and concealing income or assets.
An important consideration when trying to understand if the crime-fraud exception applies is whether the communication is related to a past wrong, or present or future wrong. Communications, whether they’re through text, email, fax, phone, social media, or handwritten notes, about past crimes and frauds are almost always considered to be privileged. But when it comes to ongoing or current crimes, communications about these are not covered.
When the crime-fraud exception does apply in a case, the prosecution can send out a subpoena to the attorney and force them to disclose the contents of the communication. Some legal situations do require lawyers to ethically disclose communications, and if these communications are not expressed, harsher legal steps can be made against the representation, including criminal charges.
Examples include perjury, withholding crucial evidence, threats from a client, or a missing person’s case. Most states require attorneys to disclose information learned from a client that will prevent death or serious injury and lead to further physical damage. State ethics rules outline which communications attorneys have to disclose and these rules usually have procedures meant to minimize the amount of information that is made known.
About Coast General Insurance
Coast General Insurance Brokers is an insurance brokerage entirely dedicated to business owners. Our agency’s purpose is to partner with our business clients to maintain a pulse on their risks as the business evolves. We match Property and Casualty products and help mitigate claims. Our agency has a dedicated team for Commercial Insurance as well as a team dedicated to Health and Wellness benefits for any size company. Give us a call today at (805) 644-4740 to learn more about what we can do for you.