Paul Manafort, Monica Lewinsky, and the Penn State Three Case: When Should the Crime-Fraud Exception Vitiate the Attorney-Client Privilege?
Volume 91, No. 3, Spring 2019
By Lance Cole [PDF]

Although the Supreme Court provided guidance on when a court should entertain a crime-fraud exception claim in United States v. Zolin, that case did not specify how much or what kind of proof is necessary, or how much evidence of intent by the client is required, for a court to invoke the exception and overcome the application of the privilege. State courts and the lower federal courts have since been left to grapple with this important issue on a case-by-case basis and have reached differing conclusions. This Article examines the law that has developed in this area since the Supreme Court decided Zolin and argues that setting too high a bar for application of the crime-fraud exception is inconsistent with the policy grounds that underlie the attorney-client privilege and can have serious adverse consequences for the administration of justice.

Lance Cole is Professor of Law, Eshelman Faculty Scholar, and Director of the Center for Government Law and Public Policy Studies at the Dickinson School of Law, Pennsylvania State University.