The Mar-A-Lago Documents Case And The Crime-Fraud Exception To Attorney Client Privilege
It looks as though the judge in former President Donald Trump’s classified documents case believes that Mr. Trump may have “committed criminal violations,” allowing prosecutors to sever the attorney-client privilege that allowed Trump’s defense attorney, Evan Corcoran, to keep mum about communications between the two. The privilege has become victim to what’s known as the crime-fraud exception, and Mr. Corcoran must now respond to questions across six separate topics related to what he knows regarding the potential mishandling of classified documents. In addition, Corcoran’s hand-written and transcribed notes related to his representation of Mr. Trump in the matter will be made available to the court.
Attorney-client privilege is a time-honored construct used to protect lawyers from having to testify against a client. And who would argue against this basic benefit afforded those seeking legal advice and those dispensing it? Without it, how could clients ever expose the particulars of their experience, all the while unsure whether those details would later be revealed? Any communications between a client and their attorney that occur with the expectation of confidentiality, when related to legal advice, are protected by attorney-client privilege, and that includes information that passes through an attorney’s staff while facilitating communications. Even prospective clients who seek and receive legal advice are protected by the privilege, assuming the attorney made no attempts to deter them from relying on that advice. Maintaining the privilege comes with a few rules, however, including that the material must remain confidential (don’t post it on social media or have meetings with third parties present, and don’t use work email accounts to discuss confidential material). When the other side wishes to breach attorney-client privilege, there are a few avenues to do that, as well.
As a matter of law, attorney-client privilege protects certain confidential material from appearing in a trial, although there are definite exceptions to that rule:
- If there is a demonstrable overriding public policy interest, the privilege may be revoked;
- When pitted against shareholders, corporations do not enjoy attorney-client privilege if shareholders can establish cause to breach it;
- When a client’s communications with the attorney are intent on covering up a crime or fraud—it is known as the crime-fraud exception, and the privilege may be breached.
Understanding the Crime-Fraud Exception
What kinds of things are not protected by attorney-client privilege due to the crime-fraud exception?
- If a client has made threats against an adversary in the case, including the prosecutor any witnesses, or the judge;
- If the attorney and client have conspired to commit a criminal action;
- When an attorney is aware that their client has lied or will lie in sworn testimony, it must be reported. It is obligatory for attorneys to prevent the presentation of false or perjured evidence to the court.
Protecting Attorney-Client Privilege
At The Law office of Julia Kefalinos, our skilled Miami criminal defense attorneys are acutely aware of the rules regarding attorney-client privilege, and will always act to protect essential communications. To discuss your situation with an attorney you can trust to put your best interests in the forefront, schedule a confidential consultation in our Miami office today.