Crime-Fraud Exception: Everything You Need to Know
There is no privilege under this article if the services of the lawyer were obtained to enable or aid anyone to commit or plan to commit a crime or a fraud.2 min read updated on February 01, 2023
'There is no privilege under this article [dealing with attorney-client privilege] 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.' California Evidence Code section 956
Where the entire attorney-client relationship is embarked upon in furtherance of criminal activity, and the relationship is permeated by criminal activity and the client takes an active part in it, the crime-fraud exception is satisfied notwithstanding that it may have been the attorney who originally conscripted the client for the illegal purpose. In re Impounded Case (Law Firm) (1989) 879 F.2d 1211, 1213-14.
In order to establish the crime-fraud exception to the privilege, 'the party opposing the privilege must establish a prima facie case of fraud. [T]he party must also establish a reasonable relationship between the fraud and the attorney-client communication.' Cunningham v. Connecticut Mut. Life. Ins. (S.D.Cal. 1994) 845 F.Supp. 1403, 1412.
Work product is governed by a different statute than attorney-client privilege. Code of Civil Procedure section 2018, subdivision (b) states in part that 'the work product of an attorney is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice.' Subdivision (c) provides: 'Any writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories shall not be discoverable under any circumstances.' Code Civ. Proc., 2018, subd. (c). In BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240, the court held that the crime-fraud exception to the attorney-client privilege does not apply to attorney work product because, by its terms Penal Code section 956 'expressly applies to communications ordinarily shielded by the attorney-client privilege,' while the 'work product rule encompasses a companion but separate document protection.' 199 Cal.App.3d at 1249.
It is the burden of the party asserting the work product privilege to prove that the material in question is work product and therefore privileged. BP Alaska Exploration, Inc. v. Superior Court, supra, 199 Cal.App.3d at 1252 ['the party asserting a privilege has the burden of proving the essential elements of the privilege. [Citation.]'].
Under the federal rules of civil procedure the crime-fraud exception applies to work product.