Cheryl Mills Will Be Forced To Testify. Crime-Fraud Exception Prevents Her From Claiming Atty Client
During her testimony ordered by Judge Sullivan in the Judicial Watch FOIA case, she claimed attorney client privilege in response to questions regarding Hillary's private server. The only problem with that, is her testimony already shows violations of the Federal Record Keeping laws for FOIA and as such, fail the test for the Crime-Fraud Exception to attorney client privilege. I suspect she will be forced, at court, to answer these questions she declined under deposition.
For more information on the Crime-Fraud Exception: http://www.nolo.com/legal-encyclopedia/the-crime-fraud-exception-the-attorney-client-privilege.html
The attorney-client privilege protects most communications between clients and their lawyers. But, according to the crime-fraud exception to the privilege, a client’s communication to her attorney isn’t privileged if she made it with the intention of committing or covering up a crime or fraud.
Because the attorney-client privilege belongs to the client, the client’s intent determines whether the exception applies. Most courts will apply the exception even if the attorney had no knowledge of, and didn’t participate in, the actual crime or fraud.
The crime-fraud exception applies if:
- the client was in the process of committing or intended to commit a crime or fraudulent act, and
- the client communicated with the lawyer with intent to further the crime or fraud, or to cover it up.
(For further information about the exception, see How do courts determine whether the crime-fraud exception applies? and Does the crime-fraud exception apply to documents?)
Not Just Crime
In some states, the crime-fraud exception isn’t limited to crimes and fraud; it also applies where the client’s object is a civil tort. For example, the exception could apply if a landlord sought advice about unlawfully evicting a tenant.
Note that many torts are also crimes—assault and trespassing are but two examples. So, even in a state where the client’s objective must be criminal in order for the crime-fraud exception to apply, something that also happens to be a tort may trigger it.
Crimes and Frauds
Whether the crime-fraud exception applies depends on the content and context of the communication. The exception covers communications about a variety of crimes and frauds, including (to name just a few):
“suborning perjury” (asking an attorney to present testimony she knows is false)
destroying or concealing evidence
witness tampering, and
concealing income or assets.
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