items are not protected in the hands of the client, then they cannot beshielded by handing them over to an attorney.1.
Look at the documents themselves
– see belowii.
Amendment – Held
: Fifth Amendment Compelled Self-Incrimination – The lawyer cannot invoke the 5
on behalf of the client b/c the
disclosure is being compelled,
not the client’s
doesn’t apply when the lawyer is being asked to give upsomething on behalf of the client.2.The court holds that the documents are not protected b/c they arenot
3.What kinds of
things/documents are privileged/protected in theclient’s hands
?a.Unclear if any things/documents are b.Perhaps something like a diary – which is more testimonialin nature than personal business recordse.
Crime-Fraud Exception (“CFE”) to the ACP
- Client communications to alawyer “in furtherance of criminal or fraudulent activity or closely related to it”are not privileged. (These are communications where the lawyer’s services wereused in furtherance of the crime/fraud.)i.The exception to the ACP applies where legal representation was securedin furtherance of intended, or present, continuing illegality.ii.This exception does not apply to communications between an attorney anda client for crimes or fraud that the client has
– pastcrimes. (Don’t want to prevent people from using attorneys when they arein trouble.)iii.The party seeking to apply the CFE must make a prima facie showing of the following:1.The client was engaged in criminal or fraudulent conduct when hesought the advice of counsel, that he was planning such conductwhen he sought the advice of counsel,
that he committed acrime or fraud subsequent to receiving the benefit of counsel’sadvice, AND2.The attorney’s assistance was obtained in furtherance of thecriminal or fraudulent activity
was closely related to it.iv.In Re Sealed Case (Lewinsky ), 162 F.3d 670 (1998) – page 240:1.Monica went to her lawyer (Carter) to have him draw up a falseaffidavit by her in the Jones case.2.
: The perjury was material b/c it was “predictably capable of affecting the decision of the trial court” therefore the CFE appliesand Carter must produce the affidavit.3.
: The court in this case holds that the CFE applies and thendisregards the 5
Amendment. This is important b/c they have putthe 5th Amendment under the ACP and then stated there is a CFEto the ACP!!v.CFE doesn’t apply if the parties did break the law but were acting in goodfaith.2