What is the crime-fraud exception, and what do legal professionals need to know about it?
The crime-fraud exception is a crucial aspect of legal practice. This exception negates the attorney-client privilege if legal services are sought or obtained to facilitate or plan a crime or fraud.
As a paralegal, or as any legal professional for that matter, encountering such scenarios requires a comprehensive understanding of legal principles and ethical obligations.
In this article, we’re going to detail a hypothetical situation where a paralegal discovers communication indicating criminal intent between a lawyer and a client, and then explore what course of action must be pursued with regard to the crime-fraud exception when navigating these tricky scenarios.
Let’s get started.
A scenario where the crime-fraud exception is applicable
Imagine you’re a paralegal in a small litigation firm in Southern California.
The named partner tapped you on the shoulder on a Friday afternoon and asked you to create a privilege log in a pending litigation matter over the weekend.
You had plans to hit the beach, but you’ve been angling for a promotion, so you accept the assignment and commit to doing your very best work.
You show up Saturday morning, latte in hand, and begin digging through all the documents the attorneys have flagged as privileged.
About three hours into the task, you come across an email between another lawyer in the firm (we’ll call him “Larry Lawyer”) and the client (we’ll call him “Joe Client”). It reads:
Larry Lawyer: So, are you going to talk to your wife? You remember she refused to sign that prenup like you wanted, right?
Joe Client: You don’t have to worry about her or the divorce. I’ve got a guy who says he can take care of her and it’ll look like she just had a stroke. The life insurance company will never be the wiser, I’ll be single, and I’ll be $5 million richer. He said if I get him $10,000, he’ll finish her off on June 10. Of course, I’ll need you to make arrangements to pay this guy and to fill out the insurance paperwork so we have an airtight claim.
You look up at your wall calendar and realize it’s June 6.
What are you supposed to do?
This is obviously a communication that falls within the attorney-client privilege, but shouldn’t you tell someone about it? This woman’s life appears to be on the line.
While this hypothetical situation presents an extreme and fairly obvious case, it gives us the opportunity to talk about an important exception to the attorney-client privilege in California that might impact your work as a paralegal.
It’s called the crime-fraud exception.
As a side note, this might also be the kind of situation that raises ethical concerns about your employer. We cover more on how to handle these kinds of ethical questions in another article.
The attorney-client (-paralegal?) privilege
Anyone even remotely familiar with the legal profession is familiar with the attorney-client privilege.
In California, it is codified at Evidence Code section 954, which basically says that a client has the right to keep communications between he and his attorney strictly confidential. The client may also instruct his attorney not to reveal those communications to anyone else.
Moreover, California Business and Professions Code section 6068 makes it an affirmative duty on the part of the attorney to keep client confidences secret.
So, do those rules apply to paralegals?
You bet.
California Rule of Professional Conduct 5.3 effectively mandates that attorneys make sure their non-attorney staff live up to the same professional obligations that apply to them. Presumably, this includes the attorney-client privilege.
Plus, the Model Code of Ethics and Professional Responsibility published by the National Federation of Paralegal Associations (Rules 5.1 – 5.6) requires paralegals to uphold the attorney-client privilege.
Going back to our hypothetical, our paralegal has discovered an email between a lawyer and a client that causes great concern.
Absent any exceptional circumstances, that document is subject to the attorney-client privilege regardless of their concern.
That means they cannot disclose its contents to anyone, right?
But it looks like we’ve got exceptional circumstances here.
Let’s dive into the rules to see what our paralegal should do.
The crime-fraud exception
California’s crime-fraud exception to the attorney-client privilege appears at Evidence Code section 956(a).
It simply states that “[t]here is no privilege under this article if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud.”
That language is fairly clear. There is “no privilege” if the lawyer’s services will enable or aid Joe Client in committing a crime.
So, our paralegal should report the crime without regard to client confidences, right?
Not so fast. As with many areas of the law, there is some wiggle room here.
After all, some people might try to argue that a defense attorney’s entire job is to aid people who might have committed crime. Defendants are still entitled to the attorney-client privilege. Clearly, there are some nuances here.
The crime-fraud exception only applies to present or future crimes
In our hypothetical, the impending crime should likely be reported because it is one that hasn’t happened yet.
Generally speaking, the crime-fraud exception only applies where disclosure of a privileged communication will prevent a crime that is happening or is about to happen.
Looking back at our example, if Joe Client’s email spoke to a crime he had already participated in (past tense), then there would be no exception to the attorney-client privilege.
That makes sense if you think about it. If the exception applied to past crimes, then many criminal defendants would lose their ability to speak candidly to their legal teams.
In that situation, our paralegal would need to keep the attorney-client communication to herself. Our example, however, specifically talks about a crime that is likely to happen in the future. The exception applies.
Threshold for application
To invoke the crime-fraud exception, courts require a prima facie showing of fraudulent intent.
This means that the party seeking to pierce the attorney-client privilege must provide enough evidence to establish a reasonable basis that the privileged communications were used to further a crime or fraud.
Here are key components of the threshold requirement:
- Prima facie evidence: The court doesn’t need conclusive proof, but rather a “prima facie” showing, which means the evidence must be enough to support a reasonable belief that the attorney-client relationship was used to further criminal or fraudulent activity. This can be circumstantial or direct evidence of wrongdoing.
- Dual elements: To satisfy the threshold, two elements must generally be established:
- Ongoing or intended crime/fraud: The communication in question must relate to future or ongoing criminal or fraudulent activity. Privilege cannot be pierced for past crimes already committed.
- Use of attorney’s services: The legal advice or services provided by the attorney must be used to facilitate or further the crime or fraud. The mere fact that the client committed a crime is insufficient; the attorney’s involvement must be linked to furthering that illegal activity.
- In camera review: Courts often use an in camera review (private review by the judge) to determine whether the crime-fraud exception applies. The judge will review the contested documents or communications privately to assess if there’s enough evidence to pierce the privilege. This process helps balance the protection of the privilege with preventing the misuse of legal counsel for illegal purposes.
- Judicial discretion: The court has broad discretion in determining whether the prima facie standard is met. In some cases, evidence such as suspicious financial records or internal communications referencing illegal actions may suffice to meet the burden.
To whom does the paralegal report the crime or fraud?
Now, let’s talk about how the exception applies. If the lawyer wouldn’t have to maintain the privilege, the paralegal surely wouldn’t have to either, right?
Probably not, but the paralegal should proceed with caution.
The NFPA Model Code provides important guidance on this issue.
Specifically, Rule 1.3(f) states that “[i]f a paralegal possesses knowledge of future criminal activity relating to a client, that knowledge must be reported to the paralegal’s supervising attorney immediately.” (Emphasis added).
Prior iterations of this rule required a paralegal to alert “appropriate authorities,” but the rule was changed after an Informal NFPA Ethics Opinion deemed that duty to be too broad.
So, what should our paralegal do in this situation?
Our paralegal in the above hypothetical definitely has a reason to be concerned.
That said, it is their duty to take those concerns (and that email) to their supervising attorney. The attorney then has a duty to analyze the situation and make a report to authorities, if appropriate.
Hopefully, any crime fraud exceptions you encounter as a paralegal won’t be so dire as the scenario we discussed here.
Plus, odds are good that if a client asks about something like destroying harmful evidence, the attorney on the case will guide them away from those illegal actions without needing to involve outside authorities.
The important thing is that you know you can (and should) speak up if you see that a crime is in progress or is about to be committed.
Conclusion
In conclusion, the scenario presented highlights the intricate balance between upholding legal privileges and addressing ethical obligations, especially within the context of the attorney-client relationship.
As a paralegal in, navigating such scenarios demands a nuanced understanding of legal principles, particularly the attorney-client privilege and its exceptions.
The case underscores the significance of the crime-fraud exception under California law, emphasizing that the privilege does not shield communications intended to facilitate criminal activities or fraud.
While respecting client confidentiality remains paramount, the duty to prevent or report ongoing or impending criminal acts supersedes such privileges.
Moreover, the ethical obligations outlined by professional codes of conduct and rules further underscore the responsibility of paralegals to uphold the integrity of the legal profession.
By promptly reporting potential criminal activities to supervising attorneys, paralegals contribute to the preservation of justice and adherence to ethical standards.
While the hypothetical scenario I’ve presented demonstrates a distressing dilemma, it serves as a poignant reminder of the pivotal role paralegals play in upholding legal ethics and ensuring the fair administration of justice within the legal landscape of Southern California and beyond.
