The Crime-Fraud Exception to the Attorney-Client Privilege
The attorney-client privilege does not cover statements made by a client to their lawyer if the statements are meant to further or conceal a crime. For this exception to apply, the client must have been in the process of committing a crime or planning to commit a crime. The exception may apply in some types of civil cases as well, such as when a client is planning to perpetrate fraud or another tort. (The line between criminal and civil cases can be blurred because some conduct, such as an assault, can result in both criminal and civil liability.)
Some of the crimes that often arise in this context include crimes that are meant to obstruct an investigation or ongoing prosecution. A client might tell an attorney about their intent to tamper with witnesses or destroy evidence of a crime. They may tell the attorney that they will induce a witness to commit perjury by lying during their testimony, or they may ask the attorney to help them by presenting false evidence. In some cases involving financial crimes, falsifying information about income or hiding assets may trigger the crime-fraud exception.
What Happens When the Crime-Fraud Exception Applies?
If the crime-fraud exception applies, the attorney can be subpoenaed and must disclose the information. In some instances, the attorney must take it upon themselves to report the information. These generally include perjury (not necessarily when the client themselves gives perjured testimony), crucial evidence, missing witnesses or persons in danger, or serious threats of harm.
Timing of the Crime
An important distinction separates communications regarding a past crime from communications regarding an ongoing or future crime. The crime-fraud exception usually applies only to communications regarding ongoing or future crimes. Communications regarding past crimes remain protected under the privilege. Sometimes criminal intent can play a role in a court’s decision on whether the exception applies. If the client has a current intent, the crime-fraud exception probably applies. If the client does not have a fully formed intent but is asking about their options, the exception may not apply because their intent is only potential.
Disclosing the Communication
An attorney may be required by state ethical rules to disclose this type of communication. While failing to disclose it does not lead to criminal penalties, they may face sanctions from the state bar association. For example, the attorney may be required to report a threat by their client to harm someone else. They generally have an obligation to reveal any information that would prevent someone else from suffering death or serious injury. An attorney may or may not be required to reveal information that would prevent financial losses resulting from a crime. If the client tells the attorney about the location of a missing witness or victim, or a key piece of tangible evidence, the attorney sometimes will need to disclose that information.
A Client’s Perjury
Instead of notifying the court, an attorney who knows that their client has offered or plans to offer perjured testimony should withdraw from representation. This way, the lawyer is not committing an ethical violation by tolerating perjury, but does not prejudice their client’s case.
If a lawyer knows that a witness plans to commit perjury or has committed perjury, they have a duty to disclose this information to the court. However, they may not have a duty to disclose perjured testimony by their client. The lawyer instead may ask the court to allow them to withdraw from the case and allow the client to find a new attorney, without telling the judge that the reason for their withdrawal is the perjury. (The judge may suspect that this is the reason, but attorneys often have other reasons to withdraw, so the judge will not be certain.)
Rules on the crime-fraud exception vary by state, but their main purpose is to balance general safety concerns against the relationship between the attorney and the client.