Re: IP: more on Feds say New York terrorist lawyer

[David Farber <dfarber@earthlink.net>]

-----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. 

-- 
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		   Mark Eckenwiler    eck@panix.com

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