The Crime-Fraud Exception: A Defense Lawyer's Quandary

New York Law Journal

By James Mitchell and Kelly Lin
December 8, 2023

The attorney-client privilege does not protect client communications in furtherance of contemplated or ongoing criminal or fraudulent conduct. As the U.S. Supreme Court has recognized, the privilege’s purpose of encouraging frank discussion between clients and their counsel “ceases to operate at a certain point, namely, where the desired advice refers not to prior wrongdoing, but to future wrongdoing.” United States v. Zolin (1989).

While the crime-fraud exception’s use is limited in practice, the standard of what confidential communications are subject to it remains vague and is thus a potential quagmire for counsel trying to represent their clients zealously. In this article, James Mitchell and Kelly Lin examine factors defense counsel should consider in analyzing whether the privilege applies in any given situation.

Read the full article here.

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