A recent court ruling related to Donald Trump’s attempts to overturn the 2020 presidential election serves as an evergreen reminder that the attorney-client privilege and work product doctrine do not insulate documents and communications created in furtherance of a crime or fraud from disclosure.

Background

As part of its investigation of the January 6 Attack on the US Capitol, a House of Representatives Select Committee served a subpoena for emails sent and received by Professor John Eastman, an attorney for Trump and his campaign. Eastman brought an action^[1] in federal court to attempt to prevent his former employer, Chapman University, from producing certain of his emails to the Committee, arguing that these documents were protected by the attorney-client privilege and work product doctrine.

Many of the documents at issue relate to Trump’s attempt to cause Mike Pence, as Vice President, to reject presidential electors from certain states during the January 6, 2021, Joint Session of Congress. The Committee argued that even if Eastman could demonstrate that these documents were protected from disclosure in the first instance, they must be disclosed under the “crime-fraud exception” to the attorney-client privilege and work product doctrine.

The Crime-Fraud Exception

Typically, the attorney-client privilege shields confidential communications between attorneys and their clients that are made for the purpose of legal advice. And the work product doctrine typically protects the confidentiality of documents that are prepared in anticipation of litigation by or for a party or the party’s representative. But there are exceptions to these protections.

Where a client seeks advice from an attorney that will serve the client in the commission of a fraud or crime, and where otherwise protected attorney-client communications or work product are sufficiently related to the crime and were made in furtherance of the crime, the crime-fraud exception applies and the communications and work product must be disclosed.

In this case, the court found that the crime-fraud exception applies because it was more likely than not that Trump “corruptly attempted to obstruct” the electoral vote count at the January 6 Joint Session of Congress and that Trump and Eastman conspired to defraud the United States by agreeing to obstruct the electoral vote count.

The crime-fraud exception is not limited to the context of criminal prosecutions, government investigations, or campaigns to overturn democratic elections. It applies equally to business disputes. Parties to a lawsuit who suspect an otherwise privileged communication may have been made in connection with an effort to perpetrate a crime or fraud should consider invoking the crime-fraud exception to obtain those communications in discovery.

Companies and their owners should take notice that the attorney-client privilege and work product doctrine may not protect them when they consult an attorney for advice that will serve them in the commission of crime or fraud. The crime-fraud exception may apply even if the client is not ultimately successful in their efforts to perpetrate the crime or the fraud or if the attorney is not aware of the illegal purpose of the legal advice.

ENDNOTE

[1] Order re Privilege of Documents Dated January 4-7, 2021, Eastman v. Thompson, Case No. 8:22-cv-00099-DOC-DFM (C.D. Cal. Mar. 28, 2022).