Legal Ethics Corner

Ethics Corner is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.

Practitioners Face Ethical Constraints in Proving Exceptions to the Attorney Client Privilege

Evidence Code section 956 provides that "[t]here is no privilege under this article if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud." The proponent of the crime-fraud exception bears the burden of proof of the existence of crime or fraud. (Geilim v. Superior Court (1991) 234 Cal.App.3d 166, 174.)

How does one meet their burden in this regard?The most likely avenue is a third-party producing the documents either informally or in response to a subpoena.   The State Bar of California's Committee on Professional Responsibility and Conduct, previously sought comment on the Proposed Formal Opinion Interim No. 06-0004 which provided that “If an attorney receives a confidential written communication between opposing counsel and opposing counsel’s client under circumstances reasonably suggesting that the crime-fraud exception precludes application of the attorney-client privilege, the attorney may ethically read the communication. However, the attorney must notify opposing counsel as soon as possible that the attorney has possession of the communication.” (See, http://www.calbar.ca.gov/AboutUs/PublicComment/Archives/201107.aspx.)  

But  the Supreme Court decision in Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725 in effect precludes the proponent of the crime-fraud exception from relying upon privileged information. (Id. at p. 740; 737, fn. 4 [A court “may not order its disclosure to determine if it is subject to the attorney-client privilege,..." (Id. at p. 737, fn. 4; see also, State Farm Fire & Casualty Co. v. Superior Court (1997) 54 Cal.App.4th 625, 645 ["the Legislature does not contemplate disclosure of privileged material in ruling on the crime/fraud exception."])  More recent decisional authority precludes an attorney from reviewing correspondence any more than to determine if it was an attorney client communication.   (Clark v. Superior Court (2011) 196 Cal.App.4th 37, 48, 53-54 [once examination showed a document had been transmitted between an attorney representing a corporation and either an officer or employee of the corporation, the attorney must “refrain from examining the materials any more than is essential to ascertain if the materials are privileged, ....'" ]) 

Given that a proponent may not rely upon the communication to prove the crime-fraud exception, it is difficult to fathom how a proponent could establish “the services of the [Law] Firm were retained and utilized to enable [the client] to commit a crime or a fraud; and whether there exists '"a reasonable relationship between the [crime or] fraud and the attorney-client communication."'  (People v. Superior Court (Bauman & Rose) (1995) 37 Cal.App.4th  1757, 1769.)

The difficulty in this regard re-affirms that every practitioner must carefully review their ethical obligations in relation to their interpretation of statutes and case authority particularly with regard to matters implicating attorney client privilege.

- Andrew Servais

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**