Is There a Crime-Fraud Exception to Attorney-Client Privilege in SC?
A fundamental rule of an attorney’s representation of clients is that the attorney can not reveal communications from their client, and that the government cannot force an attorney to reveal client communications – it’s one of a very short list of privileges in SC that include:
- Attorney-client privilege;
- Priest-penitent or clergy-penitent privilege;
- Therapist or counselor-patient privilege;
- Doctor-patient privilege; and
- Spousal privilege.
All privileges have some exceptions, but it’s generally accepted that, after priest-penitent privilege, attorney-client privilege is the most iron-clad.
Should you worry that your attorney will reveal confidential information about you or your case? That the government will be able to force your attorney to reveal privileged information?
Does the FBI’s raid on attorney Michael Cohen’s offices and residence this week mean that “attorney-client privilege is dead?”
What does Attorney-Client Privilege Mean in SC?
There are two aspects of attorney-client privilege in SC. First, when can your attorney reveal confidential information about you or your case? And, second, when can the government (or another party) force your attorney to reveal confidential information about your case?
In both situations, the answer is almost never. But, there are some exceptions that you should be aware of.
Confidentiality is the bedrock of the attorney-client relationship. If clients believe that their communications with their attorney are not protected by confidentiality, they will not share sensitive information with their attorney which would make it difficult to effectively represent a client.
A client’s ability “to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter” is necessary to provide an effective defense, to avoid making mistakes in representation, and to give solid advice.
Rule 1.6 of SC’s ethics rules prohibit an attorney from revealing confidential information about a client unless: 1) The client gives informed consent; 2) the disclosure is “impliedly authorized” to carry out the representation; or 3) the information falls into one of the categories below.
Although some states require an attorney to disclose information that would prevent a client from committing a crime that that would result in death or injury, South Carolina’s rules say that an attorney may disclose information in the following situations:
- To prevent the client from committing a future crime;
- To prevent reasonably certain death or substantial bodily harm;
- To prevent the client from committing a financial crime or fraud that would result in substantial financial injury when the client has been using the attorney’s advice to further the crime;
- To prevent, mitigate, or correct a substantial financial injury that results from a client’s crime or fraud when the client used the attorney’s services to commit the crime;
- For the attorney to seek independent advice about their compliance with the ethics rules;
- For the attorney to defend themselves against the client in a civil claim, criminal charge, PCR, or grievance;
- To comply with a court order; or
- To determine whether there are conflicts of interest within the attorney’s law firm only if the disclosure does not compromise the attorney-client privilege or prejudice the client.
In South Carolina, the attorney is not required to reveal the above information, but it is permitted in the attorney’s discretion.
It may look like a long list, but it comes down to this: Your attorney may, but is not required to, reveal information about you if you seek advice from your attorney to assist in committing a crime, if you intend to commit a future crime or hurt someone, or if the attorney has to defend a claim that you filed against them.
In South Carolina, these exceptions to the confidentiality rule are often referred to as the “crime-fraud exception.” There is another use of the “crime-fraud exception,” however – the government can also use it to force your attorney to reveal confidential information…
Can Law Enforcement Raid My Lawyer’s Office?
What happened to Michael Cohen is extremely rare, but it can happen under certain circumstances – for example, the “crime-fraud exception” may also allow the government to breach your attorney-client privilege and subpoena documents or get them through a search warrant and raid on your attorney’s office.
The privilege, in the context of criminal defense, allows for your lawyer to give you effective advice and defend you against allegations of past criminal conduct. On the other hand, if you are using your attorney’s services or advice to commit current crimes or to plan future crimes, the attorney-client privilege does not apply nor should it. At this point, your attorney is not an objective adviser – they have become a co-conspirator.
A raid on an attorney’s office is a big deal, and, when it happens, it causes outrage among the legal community. When a prosecutor or law enforcement seeks to breach attorney-client privilege, they had better get it right.
Ordinarily, a search warrant or subpoena for an attorney’s files must be reviewed and signed-off on by the highest ranks in the law enforcement agency. Then, it is presented to a judge who decides whether there is probable cause that the evidence exists and that, if what the government says is true, it is not covered by the attorney-client privilege.
What is a Taint Team?
Even then, the government does not get to just take a stack of files and read them – although there may be evidence in one case that an attorney participated in or was used to further a crime, the attorney typically has many cases and many files that are still covered by attorney-client privilege.
This is usually handled by what is called a “privilege team” or “taint team,” which should be made up of independent attorneys who are not connected to the case and who are sworn to secrecy – they review the materials before they are given to the prosecutor, to identify: 1) Material that is covered by attorney-client privilege; 2) Material that is not covered by attorney-client privilege; and 2) Material that would be covered by the privilege but the crime-fraud exception applies.
A judge is involved in the process from start to finish – first, the court must review the warrant application and approve the seizure.
Second, the attorney whose office was raided will immediately seek judicial review to: 1) Protect the attorney’s un-involved clients; 2) Prevent the prosecutor from keeping the files; and 3) Get the files returned to the attorney’s office.
Lastly, the court will decide whether any evidence that was seized is admissible at trial or in future court proceedings – if the information was seized unlawfully, in violation of the Fourth Amendment or attorney-client privilege, the material will be excluded in court.
Charleston, SC Criminal Defense Attorney
I believe that the attorney-client privilege is sacred, I will fight for it, and I can assure my clients without reservation that, with the limited exceptions above, our office will not violate your confidences. We do not, have not, and will not participate in advising any client who is planning current or future crimes, and, if we suspect that is happening, we will stop the conversation immediately and clarify the limits of attorney-client confidentiality.
If you have been charged with a crime in the Charleston, SC area and you are looking for a criminal defense lawyer who understands the ethics rules and takes confidentiality seriously, contact Charleston criminal defense attorney Grant B. Smaldone now by calling at (843) 808-2100 or by filling out our online contact form.