Revisiting the Crime-Fraud Exception to the Attorney-Client Privilege: A Proposal to Remedy the Disparity in Protections for Civil and Criminal Privilege Holders
Volume 82, No. 1, Spring 2009
By Cary Bricker [PDF]

This Article surveys circuit court holdings that address the crime-fraud exception to the attorney-client privilege and analyzes the differential treatment conferred on civil versus criminal privilege holders. 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 them these protections is a due process violation. In the criminal context, conversely, privilege holders rarely learn the allegations or have the opportunity to rebut them. However, all federal courts that have addressed the issue concur that denying these protections in a criminal case does not constitute a due process violation, on the ground that grand jury investigations are investigative rather than adversarial, and also due to the importance of safeguarding grand jury secrecy. These courts have nevertheless devised some limited procedural protections for criminal privilege holders, but these differ from circuit to circuit. This Article proposes a statute to regularize these procedural protections and to ensure uniform protection in criminal cases.

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