The exception applies where a client sought legal advice to further a crime or fraud, regardless of whether counsel knew. It requires a prima facie showing that the client was engaged in or planning wrongdoing and that the communication related to it.
Advice about past conduct remains privileged.
Alternative Names:
Crime-Fraud, Crime or Fraud Exception
Why it Matters?
The distinction between advice about past conduct and advice furthering ongoing wrongdoing is what limits the exception, and it is the line defense counsel should establish clearly. Seeking counsel about a completed act is exactly what privilege protects. Courts typically require an in camera showing before permitting review, which provides a procedural check against fishing expeditions built on the exception.
Frequently Confused with
Related terms
Frequently asked questions
Does the exception cover advice about past conduct?
Must counsel have known?
