Criminal defendants accused of white-collar crimes often deal with lawyers before and even while engaged in their alleged criminal misconduct. All or most lawyers have the vague notion that the attorney-client privilege can evaporate in such crime-related settings.
Several decades ago, some courts’ expansive application of the crime-fraud exception seemed to frequently strip away such privilege protection. But courts eventually cut back on that worrisome approach. In one of the now thankfully rare crime-fraud exception cases, the court in T.T. International Co. v. BMP International, Inc., quoted a circuit court’s now more correctly emphasized requirement that “the attorney’s assistance was obtained in furtherance of the criminal or fraudulent activity or was closely related to it.” Case No. 8:19-cv-02044-CEH-AEP, U.S. Dist. LEXIS 212639, at *5 (M.D. Fla. Nov. 22, 2024) (citation omitted).
In other words, the crime-fraud exception does not apply simply because the otherwise privileged communications would provide evidence of criminal or fraudulent conduct — it must show that a lawyer assisted in that wrongful conduct.
