5.1.7

Attorney-Client Privilege, Crime-Fraud Exception

Case:

United States v. Edison (N.D.Cal. 2008) 2008 WL 1706660

Issue:

Was a letter from an incarcerated inmate to his wife instructing her to prepare phony documents and give them to his attorney to give to the government to cover up the husband’s alleged past crime covered by the attorney-client privilege?

Holding:

No.  Under the “conduit theory,” the key ingredient of confidentiality in the attorney-client privilege “is destroyed when a client expects that the attorney will relay the information to non-privileged destinations.  [¶] Any information [the wife] communicated to [the husband’s attorney] with the understanding that he would convey it to the government would not be privileged.  Here, the whole point was for [the wife] to transmit the phony documents to counsel so he could pass them on to the government.”  (Id. at **2-3.) 

The Court found that the crime-fraud exception also stripped the privilege from the letter because it was used to further the crime of obstruction of justice, even though the letter did not further the underlying past crime. 

The letter also was not privileged by the wife’s alleged role as the attorney’s agent in helping to prepare her husband’s defense.  The Court explained that, even if the wife were the attorney’s agent, the privilege extends only to communications with an agent intended to obtain legal advice from the attorney.  “Here, [the husband] did not write the letter to [his wife] with the intention of obtaining legal advice from [his attorney]; indeed, he did not intend for [the wife] to share the letter with [the attorney]” – only the phony documents he instructed her to prepare for ultimate transmission to the government.  (Id. at *4.)

Note:

The Court concluded its opinion by absolving the husband’s attorney, “a respected member of the bar of the district,” of any improper role in the scheme.  “This Court is convinced that he was at most an unwitting participant in any scheme to obstruct justice.”  (Id. at *6.)