Misapplication of the narrow crime-fraud exception is a threat to maintaining predictable, well-defined safeguards surrounding the attorney-client privilege, particularly for corporations that rely on candid legal risk assessment, LCJ argues in a recent amicus brief filed with the District of Columbia Court of Appeals in In re Meta Platforms, Inc and Instagram, LLC v. District of Columbia. Read the brief here.

The brief, prepared by Jonathan Redgrave (Redgrave LLP), explains that the crime-fraud exception is very narrow and applies only in exceptional circumstances – when supported by evidence that the lawyer was retained for the purpose of furthering a crime or fraud and that the legal advice itself advanced the crime or fraud.

The D.C. Superior Court erred when it applied the crime-fraud exception in the Meta case without identifying an actionable crime or fraud in furtherance of which counsel was retained and without citing evidence that the communications in fact furthered a crime, fraud, or other misconduct. The court also erred in refusing to consider the context of the redacted attorney-client communications – even when a prima facie showing of crime or fraud is shown, “the evidence considered will only suffice ‘until contradicted and overcome by other evidence.’”

The Superior Court’s inconsistent rulings and disregard for the procedural safeguards set forth in the U.S. Supreme Court’s 1989 decision in United States v. Zolin create uncertainty regarding the scope and bounds of the attorney-client privilege.