Understanding the Attorney-Client Privilege in Criminal Investigations
Throughout history, the United States Judiciary has generally endeavored to balance the need for enforcement of law and criminal code against the broader goals society. While the maintenance of law and order is integral to the functioning of our society, so is the maintenance of trust between members of society who share certain personally or professionally intimate relationships, such as family members as well as certain service providers and their clients (e.g, doctor and patient or attorney and client). It is in this light that certain “privileged communications” are protected.
It is important for investigators to have a firm grasp of the legal dynamics and exceptions to privileged communications as to be able to enact these exceptions when it is clear privileged communications are being abused. While there are many categories of privileged communications, this article will particularly focus on the Attorney-Client privilege. Specifically, this article will review the factors necessary for attorney-client privilege to apply during criminal proceedings and how this privilege can be waived or voided while still protecting society’s broader interests.
The Attorney-Client Privilege is among the oldest non-constitutional protective doctrines available to U.S. citizens and is rooted in Rule 501 of the Federal Rules of Evidence (2005) to which each state has its own counterpart. It prohibits any information exchanged between an attorney and his/her client to be made public or used in a court of law and facilitates full and open disclosure between both parties. In order for the attorney-client privilege to apply, there must be 1) an existing attorney-client relationship and 2) the communication must be made in confidence by the client for the purpose of obtaining legal advice (Silverman, 1997). Concerns of abuse of this privilege specifically surround both the content of information exchanged and the context by which communications occur between attorney and client.
The Crime-Fraud Exception: Clark v. United States, 289 U.S. 1, 15 (1933)
The most important exception to the Attorney-Client Privilege as related to criminal investigations is the Crime-Fraud Exception which holds that attorneys are required to disclose confidential client information and/or communications to the court when necessary. Specifically, disclosure is required as a means preventing the client from abusing the attorney-client relationship by using as a means to facilitate criminal activity.
The Crime-Fraud Exception is rooted in Clark v. United States (1933) in which Clark lied to under oath in order to be accepted as a juror for United States v. Foshay (1932) (Findlaw.com, 2003). During jury selection, Clark falsely asserted that she had no direct affiliation with Foshay despite the fact she had worked for his company and that he was close friends with Clark’s husband. The jury’s decision to find Foshay guilty would have been unanimous had it not been for Clark’s decision to acquit Foshay despite the evidence against him.
It was later revealed during the course of the proceedings that Clark made her decision with the intent to disrupt the court process in order to unlawfully facilitate Foshay’s acquittal (Findlaw.com, 2003). It was also discovered that Foshay’s attorney was aware of the deception but did not report it due to restraints inherent in the Attorney-Client Privilege. Subsequently, the U.S. Supreme Court delivered the following opinion: “A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told” (Findlaw.com, 2003).
Burden of Proof for the Crime-Fraud Exception
The standards for burden of proof necessary to invoke the Crime-Fraud Exception are important to note as “proof beyond a reasonable doubt” is not necessary. These standards established in Clark were later upheld in where the court held that a lesser evidentiary showing is necessary to invoke “in camera” review than is required ultimately to overcome the privilege (NOTE: an “in camera review” refers to cases tried or examined in the judge’s chamber or where the public is excluded) (Perez & Palestine, 2000). Specifically, the in camera review must reveal prima facia (face value) evidence of collaboration to commit a criminal or fraudulent act, thereby breaking the seal of secrecy of attorney-client privilege (Findlaw.com, 2003). At that point, invocation of the crime-fraud exception requires a “good faith belief” that the relationship between the attorney and client is criminal or fraudulent in nature.
Even still, this is not to say that mere accusation or even the attorney’s knowledge of wrongdoing is enough for invocation. Rather, as held in In re Grand Jury Proceedings 87 F.3d 377 (9th Cir. 1996), the courts must find “reasonable cause to believe” the services of the attorney were “utilized in the furtherance of an ongoing unlawful scheme” (Id. See also United States v. Bauer, 132 F.3d 504, 509 (9th Cir. 1997); United States v. Chen, 99 F.3d 1495, 1503 (9th Cir. 1996) and John Doe v. United States, 13 F.3d 633 (2nd Cir. 1994) as cited in Perez & Palestine, 2000).
This case further established that it is not necessary for the attorney to have knowledge of the fraud or crime in order to invoke the crime-fraud exception (as cited in Perez & Palestine, 2000). This is due to the fact that it is possible for an attorney to be an “unwitting” participant of the crime or fraud in question. Furthermore, privileged communications exist for the benefit of society via the client; therefore, the exception only applies to the client’s actions and not the attorney.
Other Exceptions to the Attorney-Client Privilege
Aside from the Crime-Fraud Exception, the client is the only person who can waive his or her Attorney-Client Privilege. Client waivers are generally involuntary waivers and have more to do with a client’s carelessness, which is something for investigators and prosecutors alike to be intently on the look out for. For example, the attorney-client privilege must remain a communication between only the attorney and client.
“[T]herefore if a third party not having a common interest is allowed to be present during the communications or if it is intended that the communications be delivered to a third party, the attorney-client privilege will not apply” (Silverman, 1997). The importance of this in criminal investigations is that any information obtained from third parties who are allowed by the client to witness or facilitate any communication between attorney and client (e.g., current or future confidential informant, undercover officer, etc.) is not covered by the privilege.
Most jurisdictions also either allow or require the attorney to reveal privileged information if disclosure of that information will prevent significant physical harm or harm to the property or financial interest of a third party (Silverman, 1997). Also, the client can inadvertently waive his/her attorney-client privilege if he/she fails to object to the demand for disclosure during court proceedings or any other litigation to the opposing party. Once the privilege is waived, the waiver is applied to all facets of the privilege.
Finally, the Attorney-Client Privilege may be voided if communications exchanged do not directly pertain to legal advice. Whether or not business or technical advice can be accepted as legal advice is contingent upon the jurisdiction and the degree to which legal advice is intertwined with that business or technical advice. However, this is the most difficult waiver to the Attorney-Client Privilege to invoke due to the fact technical advice can easily be interwoven into legitimate legal consultation.
While protections allotted by privileged communications may seem counterproductive to the judicial process at face value, they are important to the functioning of society as a whole. Specifically, privileged communications are necessary to facilitate trust and openness between certain parties; pairs whose healthy relationships are required for the effective functioning and growth of society. However, it should be remembered that privileged communications exist to protect society’s interests, not the operational capability of criminals or their enterprises.
If abused, these protections can be very counterproductive to the judicial process and society as a whole. Therefore, it is absolutely imperative for criminal investigators to be intimately familiar with the legal dynamics of privileged communications such as the Attorney-Client privilege. Not only will this assist the investigator with the information gathering process during a criminal investigation, it will also assist the state with prosecution and ultimately lead to one less criminal escaping justice by way of abuse of the criminal justice system.
Federal Rules of Evidence. (2004). 108th Congress 2nd Session Committee Print. [Electronic version]. U.S. Government Printing Office
Findlaw.com. (2003). Clark v. United States, 289 U.S. 1, 15 (1933). Retrieved January 24, 2007, from: http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?friend=nytimes&court=us&vol=289&invol=1
Home Box Office, Inc. (2008). The Wire: Cast and Crew. Image retrieved July 28, 2008, from: http://www.hbo.com/thewire/cast/characters/maury_levy.shtml
Perez, D.L., & Palestine, S.N. (2000). The Crime-Fraud Exception to the Attorney Client Privilege. Retrieved July 1, 2008, from: http://www.taxlitigator.com/articles/168364.htm
Silverman, A.B. (1997). Silence is Golden—The Attorney Client Privilege. Retrieved January 24, 2007, from: http://www.tms.org/pubs/journals/JOM/matters/matters-9706.html
Copyright © 2008 by Noor Z. Razzaq. All Rights Reserved