Shedding Light on Shady Suits: Applying the Crime-Fraud Exceptions to the Attorney-Client Privilege and Work Product Doctrine to Bad-Faith Litigation
“[N]o reasonable person would conclude that the statements were truly statements of fact.” In stunning candor, Sidney Powell conceded that her accusations against US Dominion, Inc. (“Dominion”)—that the voting machine supplier facilitated widespread voter fraud in the 2020 presidential election—had no basis in fact, characterizing her statements instead as “vituperative, abusive and inexact”
political rhetoric. Powell’s striking admission underscores her awareness that, as she and others clamored for courts to overturn the election, their claims similarly lacked basis in fact.
The crime-fraud exceptions to the attorney-client privilege and work product doctrine strip communications of their protection where the purposes of the privilege and the doctrine are no longer served; that is, where a lawyer’s services are enlisted “to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.” The exceptions have famously been invoked to reveal, for example, Monica Lewinsky’s communications with her attorney during the preparation of Lewinsky’s affidavit denying her sexual relationship with President Bill Clinton, as well as Paul Manafort and Richard Gates’ communications with their attorney regarding materially false information provided to the Department of Justice.
The Trump campaign, Trump’s political allies, and Trump himself (collectively, “the Trump team”) instigated sixty-two lawsuits nationwide to overturn the results of the 2020 presidential election. Courts characterized the litigation—designed to enlist the courts to disenfranchise millions of American voters and undermine the integrity of the election process—as “largely hypothetical,” based on “speculation, conjecture, and unwarranted suspicion,”
and a “vast conspiracy.” Bad faith is therefore palpable in these suits that tout baseless claims designed to deprive the
American public of the right to vote. Litigation so colored by bad faith constitutes an abuse of the judicial process and is precisely the kind of fraud that should trigger the crime-fraud exception.
This Note argues that the very act of conducting baseless litigation predominantly in bad faith—“bad-faith litigation” for short—constitutes a fraud on the court and is therefore a “fraud” within the meaning of crime-fraud exceptions to the attorney-client privilege and work product doctrine. Upon evidence that such a fraud has been committed against the court, attorney-client communications and attorney work product advancing the commission of the fraud should be revealed through compelled disclosure.Subscribe to ACLR