Federal Criminal Law and the Crime-Fraud Exception: Disclosure of Privileged Conversations and Documents Should not be Compelled Without the Government's Factual Foundation Being Tested by the Crucible of Meaningful Adversarial Testing

• NCJ Number: 199044
• Journal: Maryland Law Review Volume: 62 Issue: 1 Dated: 2003 Pages: 1-29
• Author(s): Thomas M. DiBiagio
• Date Published: 2003
• Length: 29 pages
• Publication Format: Article
• Publication Type: Report (Study/Research)
• Language: English
• Country: United States of America

Annotation

This paper reviews the Federal crime-fraud exception as it relates to the disclosure to the government of privileged conversations and documents prepared in connection with legal representation of corporations and individuals accused of being involved in criminal activity and the current practice that does not adequately test the government’s factual foundation supporting the application of the crime-fraud exception.

Abstract

The attorney-client and work product privileges protect against the disclosure to the government of privileged conversations and documents prepared for corporations and individuals accused of involvement in criminal activity. However, there is an exception to this protection. The privileges are not protected against disclosure if the conversations and documents are intended to further a crime or cover up criminal activity. Federal courts can apply the crime-fraud exception and compel disclosure. The government may rely on grand jury evidence acquired from documentary evidence and statements from cooperating witnesses and seek application of the crime-fraud exception. A conflict arises with the government not being required to disclose the portion of its submission reflecting evidence obtained by the grand jury in order to preserve the secrecy of ongoing grand jury proceedings. This results in the factual foundation not being disclosed and not subject to the crucible of meaningful adversarial testing. This undermines the fairness, integrity, and the public’s perception of the criminal process. The crime-fraud exception cannot be applied without a factual foundation establishing that a client used an attorney to further a crime or criminal activity. If the government seeks to compel the disclosure of privileged materials through the reliance of evidence obtained by the grand jury, the courts should disclose the government’s evidence, disregard it, or impose a presumption against the application of the crime-fraud exception. This paper begins with a review of evidentiary privileges, followed by an overview of the crime-fraud exception, and concluding with the case law application of the crime-fraud exception.