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The Crime-Fraud Exception to the Attorney-Client Privilege in the Context of Corporate Counseling

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The Crime-Fraud Exception to the Attorney-Client Privilege in the Context of Corporate Counseling Kentucky Law Journal Volume 87 | Issue 4 Article 10 1999 The rC ime-Fraud Exception to the Attorney-Client Privilege in the Context of Corporate Counseling H. Lowell Brown Northrop Grumman Corporation Follow this and additional works at: https://uknowledge.uky.edu/klj Part of the Legal Ethics and Professional Responsibility Commons, and the Legal Profession Commons Right click to open a feedback form in a new tab to let us know how this document benefits you. Recommended Citation Brown, H. Lowell (1999) "The rC ime-Fraud Exception to the Attorney-Client Privilege in the Context of Corporate Counseling," Kentucky Law Journal: Vol. 87 : Iss. 4 , Article 10. Available at: https://uknowledge.uky.edu/klj/vol87/iss4/10 This Article is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal by an authorized editor of UKnowledge. For more information, please contact [email protected]. The Crime-Fraud Exception to the Attorney-Client Privilege in the Context of Corporate Counseling BY H. LOWELL BROwN* INTRODUCTION he evidentiary privilege protecting a client's confidential communication with an attorney from disclosure to third parties is a central element of the relationship between attorney and client.' This attorney-client privilege is generally regarded as the oldest of the common law privileges,2 dating back to the reign of Elizabeth I? * Copyright © 1999. Assistant General Counsel, Northrop Grumman Corporation. B.A. 1969, Syracuse University; J.D. 1976, Antioch School of Law. The views expressed herein are those of the author and do not necessarily reflect the views of Northrop Grumman Corporation. 'Professor Geoffrey C. Hazard has observed: The attorney-client privilege may well be the pivotal element of the modem American lawyer's professional functions. It is considered indispensable to the lawyer's function as advocate on the theory that the advocate can adequately prepare a case only if the client is free to disclose everything, bad as well as good. The privilege is also considered necessary to the lawyer's function as confidential counselor in law on the similar theory that the legal counselor can properly advise the client what to do only if the client is free to make full disclosure. Geoffrey C. Hazard, Jr.,An HistoricalPerspective on theAttorney-ClientPrivilege, 66 CAL. L. REv. 1061, 1061 (1978). 2 See Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) (recognizing the attorney-client privilege as "the oldest of the privileges for confidential communications known to the common law"). 3 See JoHN HENRYWIGMORE, 8 EvIDENCE IN TRIALS AT COMMONLAW § 2290, at 542 (McNaughton rev. ed. 1961). Indeed, it has been suggested that the privilege has its origins in Roman law. See Vincent C. Alexander, The CorporateAttorney- Client Privilege: A Study of the Participants,63 ST. JOHN's L. REv. 191, 216 (1989); Maureen H. Burke, The Duty of Confidentialityand DisclosingCorporate 1191 1192 KENTUCKY LAW JOURNAL [VOL. 87 The underlying rationale of the privilege is the encouragement of "full and frank communication between attorneys and their clients" in order to "promote broader public interests in the observance of law and administra- tion ofjustice."4 Quite simply, the privilege recognizes that in the absence of a guaranty of confidentiality, a client would be reluctant to confide possibly damaging information to an attorney, thereby hampering or preventing the attorney from rendering informed legal advice.' Thus, the Misconduct, 36 Bus. LAW. 239, 242 (1981); J.T. Fisher, Comment, Witnesses- Competency-Whether ConfidentialRevelations By Client to Attorney Regarding Future Criminalor FraudulentTransactions Must Be Divulged, 33 CHI.-KENT L. REV. 271, 272 (1955); Note, The Lawyer-Client Privilege: Its Application to Corporations,the Role ofEthics and Its Possible Curtailment,56 Nw. U. L. REV. 235,235 (1961) [hereinafter Note, The Lawyer-ClientPrivilege]. ' Upjohn Co., 449 U.S. at 389; accord Jaffee v. Redmond, 518 U.S. 1, 11 (1996); Commodity Futures Trading Comm'n v. Weintraub, 471 U.S. 343, 348 (1985); see also Trammel v. United States, 445 U.S. 40, 51 (1980) ("The lawyer- client privilege rests on the need for the advocate and counselor to know all that relates to the client's reasons for seeking representation ifthe professional mission is to be carried out."); Fisher v. United States, 425 U.S. 391, 403 (1976) ("The purpose of the privilege is to encourage clients to make full disclosure to their attorneys."); Hunt v. Blackburn, 128 U.S. 464,470 (1888) ("[The attorney-client privilege] is founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure."); Scott R. Flucke, The Attorney-Client Privilege in the Corporate Setting: Counsel's Dual Role as Attorney and Executive, 62 UMKC L. REV. 549, 551 (1994) (citing Upjohn Co.); David B. Merchant, Note, Defense CounselAs Prosecution Witness: A Combined Doctrineto Govern Attorney Disclosure,66 WASH. L. REV. 1081, 1082-83 (1991) (citing Upjohn Co. and presenting three policies underlying the privilege). That the privilege in the corporate setting encourages candor appears to be born out empirically. See Alexander, supra note 3, at 244 ("A solid majority of both the attorneys and the executives in the survey said they believed the privilege does, in fact, encourage candor."). 5See Fisher,425 U.S. at 403 ("As a practical matter, if the client knows that damaging information could more readily be obtained from the attorney following disclosure than from himself in the absence of disclosure, the client would be reluctant to confide in his lawyer and it would be difficult to obtain fully informed legal advice."); Hunt, 128 U.S. at 470; In re Grand Jury Proceedings, 517 F.2d 666, 674 (5th Cir. 1975) ("The purpose of the privilege would be undermined if people were required to confide in lawyers at the peril of compulsory disclosure every time the government decided to subpoena attorneys it believed represented particular suspected individuals."); 8 WIGMORE, supranote 3, § 2291, at 545 ("In 1998-991 THE CRIME-FRAUD EXCEPTION 1193 order to promote freedom of consultation of legal advisers by clients, the apprehension of compelled disclosure by the legal advisers must be removed; hence the law must prohibit such disclosure except on the client's consent. Such is the modem theory."); see also David S. Caudill, Sympathy For the Devil?: Reflections on the Crime-FraudException to Client Confidentiality,8 ST. JOHN'S J. LEGAL COMMENT. 369, 374 (1993) ("[I]f expansive exceptions to the rule of confidentiality are created, lawyer-client relations will suffer and one of the foundations of lawyering as we know it will begin to collapse."); Steven A. Migala, 1.R.C. § 60501 and the Attorney-Client Privilege: The Misplaced Emphasis on Incrimination over Confidentiality, 1996 U. ILL. L. REV. 509, 527 ("If lawyers cannot confidently advise their clients in the initial stages of a consultation that specific facts will be protected by the privilege, clients will not feel free to engage in open discussion with their attorneys. This uncertainty will ultimately result in a suboptimal level of representation."); Merchant, supra note 4, at 1090 ("Clients who fear that their attorneys will disclose damaging information may forego representation. Without adequate legal representation, clients may not be able to fully assess their legal claims and may fail to receive justice."); E. Elizabeth Perlman, Note, The Attorney-ClientPrivilege:A Look atIts Effect on the Corporate Client andthe CorporateExecutive, 55 IND. L.J. 407,408 (1980) ("[A]s executives realize that they may not be protected by the corporation, the corporate attorney- client privilege will not serve to encourage the executive to provide corporate counsel with the information necessary to make legal decisions for the corporation.") (footnotes omitted). This premise has been questioned. See, e.g., Note, The Attorney-Client Privilege: FixedRules, Balancingand Constitutional Entitlement,91 HARV. L. REV. 464,469-72 (1977) [hereinafter Note, FixedRules]. Indeed, it has been suggested that, in a criminal proceeding, the attorney-client privilege is of constitutional dimension in light of the defendant's Fifth and Sixth Amendment rights. See id. at 485-86 ("[W]hen the fifth and sixth amendments are considered together, the individual accused of crime does seem to have a right to attorney-client privilege. Without a right to privilege, the exercise of either constitutional right would require a waiver of the other."); Christopher Paul Galanek, Note, The Impact of the Zolin Decision on the Crime-FraudException to theAttorney-ClientPrivilege,24 GA.L.REV. 1115, 1118 (1990) ("The defendant's testimonial privilege against self-incrimination is violated if the court forces his personal representative to testify to information disclosed by the defendant."). Professor Hazard has noted in this regard that abolition of the attorney-client privilege would mean that an accused in a criminal case could not explain his version of the matter to his lawyer without its being transmitted to the prosecution. Defense counsel would become a medium of confession, a result that would substantially impair both the accused's right to counsel and the privilege 1194 KENTUCKY LAW JOURNAL [VOL. 87 attorney-client privilege shields from disclosure not only the legal advice provided by the lawyer, but also the giving of information to the lawyer by the client upon which the lawyer's advice is based.' Nevertheless, the attorney-client privilege also interferes with the truth- finding process by shielding otherwise probative evidence from disclosure.7 One noted commentator has observed: There may be a sufficientjustification for the privilege; indeed the verdict of our legal history is to that effect.
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