The attorney-client privilege is one of the great concepts that is widely known and respected, whether that is internal or external of the legal profession. This is a great asset and one of the key reasons why people hire attorneys in the first place – a means of confiding to a professional before guiding them to an ideal legal outcome.
However, there are some key exceptions to this confidentiality should the client breach some fundamental rules. They will seldom occur as the lawyer will always outline where that line is before it is crossed, yet it is worth noting for the sake of the client.
The standout entity determines the basis of attorney-client privilege is the crime-fraud exception. This takes into account the fact that the privilege is the client’s alone and depending upon their intent, that can change the outcome for how it is seen in a court of law. If communication between a client and their lawyer is made with the specific intent of either covering up a crime, intending to commit a crime or are in the act of committing one, then the privilege is no longer valid.
When The Attorney Becomes Embroiled
Individuals and organizations are responsible for their own behavior and while they have the right to seek advice and representation, the attorney cannot become embroiled in any particular crime. Should they be asked to communicate incriminating evidence or have any tangible role in a crime that would make them party to a prosecution, then the attorney-client privilege cannot be maintained and upheld. In this instance an attorney can and should present client communications that would otherwise make them party to the crime if it was left unreported.
Timeline of Events
The attorney-client privilege should always be maintained should communication between both parties concern a past or previous crime. If that timeline is shifted to the present tense or future tense, then that privilege will most commonly fall into the crime-fraud exception. It will change the intent of the individual as they are in the process of committing or crime or at least planning to do so. The lines will become blurred should a client be asking about the potential consequences of committing a crime, as a judge will have to determine the context and nature of those discussions.
While there are other factors at play for the attorney-client privilege such as state variations, civil torts and mandatory disclosures, it will be the timeline, intent, attorney involvement and crime-fraud exception that will determine if this rule is upheld or not.