CBA Record November 2018

of whether the exception exists is the allegedly privileged communication.” In Re Marriage of Decker, 606 N.E.2d 1094, 1106 (1992). How does the Court determine whether the exception applies without examining the actual confidential information first? Once the confidential material is disclosed, the whole purpose of the privilege is argu- ably eviscerated. To address this issue, the Illinois Supreme Court adopted the standard set forth in the United States Supreme Court decision, United States v. Zolin. 109 S.Ct. 2619 (1989). Pursuant to Zolin, two key components are necessary to invoke the crime-fraud exception to the attorney- client privilege: Burden: The proponent of disclosure must present evidence from which a pru- dent person would have a reasonable basis to suspect: • The perpetuation of a crime or fraud; and • That the communications were in fur- therance thereof; Decker, at 1106. In-Camera Inspection: Once this is shown, it is within the discretion of the trial court to hold an in camera inspection. • In camera inspection is not required before the privilege ceases to exist. Its use is solely within the discretion of the trial court. People v. Radojcic, 998 N.E.2d 1212, 1226 (2013). What if a Client Wants to Lie on the Stand? Nix v. Whiteside Strongly argue against doing this. Tell your client you are obligated to inform the court and disclose to the court during the trial if your advice is ignored and perjury occurs. IRPC 4.1(b). Most attorneys do not make their living as consigliere for a cartel or the Mafia. Even fewer have had their offices raided by the FBI. Fewer still have a president on their client list. Realistically, most attorneys encounter the crime-fraud exception in the context of perjury. For example, an attorney is preparing a client for a murder trial and discussing self defense. From the beginning of the case, the client consistently states he did not see the victim with anything

ney TomHagen. Played by Robert Duvall, he was the calculating, sober counsel to the Corleone crime family. He counseled their day-to-day operations, completely aware of their illegal nature, and stood guard to protect them from any possible legal ramifications. Had the FBI raided the Hagen & Associates’ Chicago office, Michael Corleone would have had bigger problems than Fredo. The rationale for the crime-fraud exception is a subset of the non-lawyer role exception. Pursuant to that ethical maxim, the attorney-client privilege only applies when the lawyer is acting as a lawyer. When a lawyer is engaged in the furtherance of crime, the lawyer either is knowingly engaged in the crime through their counsel, or the lawyer is deceived into providing illegitimate legal services. In both cases the privilege “takes flight” and ceases to exist. Clark v. United States, 289 U.S. 1, 15 (1993). However, timing is a crucial factor. Past crimes revealed to an attorney are pro- tected. Whether a client tells their lawyer they murdered someone two decades, or two minutes ago, the privilege applies. However, if the crime is an “ongoing or future crime or fraud” and the attorney aides or unknowingly aided in the ongoing acts, this client will have “no help from the law.” Clark, at 15. Keep in mind that an attorney does not have an affirmative duty to disclose even ongoing crime, so long as they are not materially engaged in its furtherance, unless a lawyer reasonably believes disclo- sure is necessary to prevent certain death or substantial bodily harm. IPRC 1.6(c). How Is the Crime Fraud Exception Asserted? The Illinois Rules of Professional Conduct suggest that a lawyer encountering a crime- fraud type situation can “ordinarily” avoid assisting in a client’s crime by withdrawing from the representation. The rules note that disclosure of confidential information may be required by law in “extreme cases.” IRPC 4.1[3] The inherent problem with the crime- fraud exception lies in the nature of con- fidentiality itself. As the Illinois Supreme noted, “[t]he best, and often only, evidence

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privilege does not apply between an attorney and client. Specifically:

Non-lawyer exception: As stated above, the privilege exists when a client seeks advice “of any kind” from a lawyer “in his capacity as such” and “relating to that purpose.” Just because your friend is a lawyer doesn’t mean they can’t say what happened in Vegas. It wouldn’t make them a bad lawyer, only a bad friend. Engagement in fraud or crime exception: Not only is the attorney client privilege inapplicable if a lawyer is actively giving legal advice in furtherance of a crime or fraud, a lawyer may disclose informa- tion relating to the representation to avoid assisting in criminal or fraudulent activity of a client, though this is only in “extreme cases.” IRPC 1.6(b)(1&2); 4.1(b)[3]. Consider the Godfather’s fictitious attor-

34 NOVEMBER 2018