Privilege Pierced by Ongoing or Future Wrongful Conduct: The Crime-Fraud Privilege Exception Is Broader Than You Think
Litigation attorney Scott O'Connell published an article in the International Association of Defense Counsel's (IADC) Defense Counsel Journal highlighting how courts have begun broadening the scope of an exception to the attorney-client privilege beyond strict crimes or frauds. The attorney-client privilege is an old and robust doctrine in the legal profession, as is the crime-fraud exception that says the privilege does not protect communications concerning ongoing or future wrongdoing. However, as Mr. O'Connell explains, some courts have begun applying the exception to conduct such as breach of fiduciary duty, tortious interference with a contract and other wrongful acts. For example, one court found that fraud can encompass tortious interference with prospective economic advantage and contractual relations. With this in mind, Mr. O'Connell advises lawyers to consider how seemingly routine or innocuous circumstances can fall under the exception, particularly in situations involving restrictive covenants.