Interesting People mailing list archives
Re: IP: more on Feds say New York terrorist lawyer
From: David Farber <dfarber () earthlink net>
Date: Wed, 10 Apr 2002 07:41:33 -0500
-----Original Message----- From: "Mark Eckenwiler" <eck () panix com> Date: Wed, 10 Apr 2002 08:36:49 To: farber () cis upenn edu Subject: Re: IP: more on Feds say New York terrorist lawyer Dave, James Nix's manic riff on attorney-client privilege would be funny if it weren't so depressingly misinformed. Briefly, the privilege is not -- and has never been -- an ironclad informational citadel, never to be breached. In addition to other exceptions (most notably, waiver), there is the "crime-fraud" exception. In essence, the privilege evaporates when the client's communications with the attorney are made for the purpose of engaging in *future* wrongdoing. The rationale is simple: to prevent the privilege from being used as a shield for incipient illegal activity. A lawyer's role is at most to keep the client from being convicted, not to enable the commission of crime down the road. Two points worth noting here: 1) The exception does not apply to communications relating to past misconduct (since that, indeed, would obliterate the application of the privilege in cases where it is most needed). 2) The doctrine does not require that the attorney be complicit in, or even aware of, the client's intent to engage in future wrongdoing. For just one of thousands of invocations of the crime-fraud exception, see http://www.xenu.net/archive/CourtFiles/occf99.html , the 1990 Ninth Circuit opinion in an IRS proceeding against the Church of Scientology. There, the court found that "[t]he MCCS project involved the discussion and planning of future frauds against the IRS," and determined the supposedly privileged materials to be admissible as evidence. -- Sold by weight, not by volume. Some settling of contents may have occurred during shipment and handling. Mark Eckenwiler eck () panix com For archives see: http://www.interesting-people.org/archives/interesting-people/
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