April 19, 2010
In Revisiting the Crime-Fraud Exception to the Attorney-Client Privilege: A Proposal to Remedy the Disparity in Protections for Civil and Criminal Privilege Holders, 82 Temple L. Rev. 149 (2009), Professor Cary Bricker challenges the differential procedural treatment of attorney-client privilege in civil versus criminal courts when there is an assertion of the crime-fraud exception.
Although the attorney-client privilege generally prohibits the introduction into evidence of confidential communication between an attorney and his client, the crime fraud exception permits receipt of that evidence in court where there is proof that a client used his lawyer to commit a crime or fraud. Bricker's research indicates that the federal judiciary uniformly holds that civil litigants must be apprised of the crime-fraud allegations and have the opportunity to rebut them in an adversarial hearing - to deny the privilege holders these protections is a violation of constitutional due process. Yet in the criminal context, privilege holders rarely learn of the crime-fraud allegations or have the opportunity to rebut them. All the federal courts that have addressed this issue concur that denying these protections in a criminal case does not similarly constitute a due process violation. These courts have devised some limited procedural protections for criminal privilege holders but these differ from circuit court to circuit court. Professor Bricker proposes a statute to regularize these procedural protections and to ensure uniform protection in criminal cases.