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The Crime-Fraud Exception May Pose Trouble for Your Case (And Your Lawyer)

May 4, 2022
Weisberg Kainen Mark, PL

In 2018, the crime-fraud exception to attorney-client privilege was brought into the spotlight when former president Donald Trump tweeted “Attorney-client privilege is dead!” after the FBI conducted a search of the office of his attorney, Michael Cohen. Regardless of the details of the Cohen case, the crime-fraud exception has become a more pervasive issue in recent years posing a threat to attorney-client privilege even in cases that are significantly lower profile than that of a United States president.

What Is the Crime-Fraud Exception?

To start, attorney-client privilege is the right to speak in confidence to your attorneys with the knowledge that they’re legally bound to keep that information confidential, and cannot be forced to testify against you. The exception to this rule is that you cannot use this privilege to perpetrate any crime, including asking for advice on how to get away with a crime or using an attorney as an accomplice, even if the attorney is not aware of your intention. In 1989, the Supreme Court ruled that the privilege is lost when the advice sought does not pertain to prior wrongdoing, but to how to execute future wrongdoing.

Ensure That Your Attorney Understands the Crime-Fraud Exception

In cases where the government applies the exception to compel an attorney to testify against a client, the prosecution has the ability to subpoena the attorney forcing the attorney to release the information previously protected by attorney-client privilege.  In fact, such evidence adduced may be sufficient to prosecute the client. 

In order to utilize the crime-fraud exception, the government must establish that the communication was used to discuss future wrongdoing, with a focus on facilitating a crime or fraudulent activity. Weisberg  Kainen Mark has fought cases on the crime-fraud exception all the way to appellate courts, and has the experience necessary to defend your case against the serious allegations that come with it. For experienced legal counsel that won’t quit, contact us today at (305) 374-5544.

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Weisberg Kainen Mark, PL

As experienced trial lawyers with a passion for justice, our firm provides clients with compelling advocacy, attorney availability, and creative solutions to your tax or criminal law matters.

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