{"id":1852,"date":"2023-04-12T15:41:39","date_gmt":"2023-04-12T19:41:39","guid":{"rendered":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/?page_id=1852"},"modified":"2025-05-12T11:09:20","modified_gmt":"2025-05-12T15:09:20","slug":"shedding-light-on-shady-suits-applying-the-crime-fraud-exceptions-to-the-attorney-client-privilege-and-work-product-doctrine-to-bad-faith-litigation","status":"publish","type":"page","link":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/in-print\/volume-60-number-2-spring-2023\/shedding-light-on-shady-suits-applying-the-crime-fraud-exceptions-to-the-attorney-client-privilege-and-work-product-doctrine-to-bad-faith-litigation\/","title":{"rendered":"Shedding Light on Shady Suits: Applying the Crime-Fraud Exceptions to the Attorney-Client Privilege and Work Product Doctrine to Bad-Faith Litigation"},"content":{"rendered":"

\u201c[N]o reasonable person would conclude that the statements were truly<\/span> statements<\/span> of fact.\u201d<\/span>\u00a0In stunning candor, Sidney Powell conceded that her accusations against US Dominion, Inc. (\u201cDominion\u201d)\u2014that the voting machine supplier<\/span> facilitated<\/span> widespread voter fraud in the 2020 presidential election\u2014had no basis in fact, characterizing her statements instead as \u201cvituperative, abusive and inexact\u201d
political rhetoric. <\/span>Powell\u2019s striking admission underscores her awareness that, as she and others clamored for courts to overturn the election, their claims similarly lacked basis in fact.<\/span><\/span><\/span><\/p>\n

The crime-fraud exceptions to the attorney-client privilege and work product doctrine strip communications of their protection where the purposes of the<\/span> privilege<\/span> and the doctrine are no longer served; that is, where a lawyer\u2019s services are enlisted \u201cto 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.\u201d<\/span>\u00a0The exceptions have famously been invoked to reveal, for example, Monica Lewinsky\u2019s<\/span> communications<\/span> with her attorney during the preparation of Lewinsky\u2019s affidavit denying her sexual relationship with President Bill Clinton,<\/span>\u00a0as well as Paul Manafort and <\/span>Richard Gates\u2019 communications with their attorney regarding materially false<\/span><\/span> in<\/span>formation<\/span><\/span> provided to the Department of Justice.<\/span><\/span><\/p>\n

The Trump campaign, Trump\u2019s political allies, and Trump himself (collectively, <\/span>\u201c<\/span>the Trump team<\/span>\u201d<\/span>) instigated sixty-two lawsuits nationwide to overturn the results <\/span>of the 2020 presidential election. <\/span><\/span>Courts characterized the litigation<\/span>\u2014<\/span>designed to <\/span>enlist the courts to disenfranchise millions of American voters and undermine the <\/span>integrity of the election process<\/span>\u2014<\/span>as<\/span> \u201c<\/span>largely hypothetical,<\/span>\u201d<\/span><\/span> based on<\/span><\/span> \u201c<\/span>specula<\/span>tion,<\/span><\/span> conjecture, and unwarranted suspicion,<\/span>\u201d<\/span><\/span>
and a<\/span> \u201c<\/span>vast conspiracy.<\/span>\u201d<\/span><\/span> Bad faith <\/span>is therefore palpable in these suits that tout baseless claims designed to deprive the<\/span>
American public of the right to vote. Litigation so colored by bad faith constitutes <\/span>an abuse of the judicial process and is precisely the kind of fraud that should trigger <\/span>the crime-fraud exception.<\/span><\/span><\/p>\n

This Note argues that the very act of conducting baseless litigation<\/span><\/span> predomi<\/span>nantly<\/span><\/span> in bad faith<\/span>\u2014\u201c<\/span>bad-faith litigation<\/span>\u201d<\/span> for short<\/span>\u2014<\/span>constitutes a fraud on the <\/span>court and is therefore a<\/span> \u201c<\/span>fraud<\/span>\u201d<\/span> within the meaning of crime-fraud exceptions to <\/span>the attorney-client privilege and work product doctrine. Upon evidence that such a <\/span>fraud has been committed against the court, attorney-client communications and <\/span>attorney work product advancing the commission of the fraud should be revealed <\/span>through compelled disclosure.<\/span><\/span><\/p>\n

Read More<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

\u201c[N]o reasonable person would conclude that the statements were truly statements of fact.\u201d\u00a0In stunning candor, Sidney Powell conceded that her accusations against US Dominion, Inc. (\u201cDominion\u201d)\u2014that the voting machine supplier […]<\/p>\n","protected":false},"author":9515,"featured_media":0,"parent":1835,"menu_order":4,"comment_status":"closed","ping_status":"closed","template":"abstract.php","meta":{"_acf_changed":false,"_price":"","_stock":"","_tribe_ticket_header":"","_tribe_default_ticket_provider":"","_tribe_ticket_capacity":"0","_ticket_start_date":"","_ticket_end_date":"","_tribe_ticket_show_description":"","_tribe_ticket_show_not_going":false,"_tribe_ticket_use_global_stock":"","_tribe_ticket_global_stock_level":"","_global_stock_mode":"","_global_stock_cap":"","_tribe_rsvp_for_event":"","_tribe_ticket_going_count":"","_tribe_ticket_not_going_count":"","_tribe_tickets_list":"[]","_tribe_ticket_has_attendee_info_fields":false,"footnotes":"","_tec_slr_enabled":"","_tec_slr_layout":""},"class_list":["post-1852","page","type-page","status-publish","hentry"],"acf":[],"ticketed":false,"_links":{"self":[{"href":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/wp-json\/wp\/v2\/pages\/1852","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/wp-json\/wp\/v2\/users\/9515"}],"replies":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/wp-json\/wp\/v2\/comments?post=1852"}],"version-history":[{"count":3,"href":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/wp-json\/wp\/v2\/pages\/1852\/revisions"}],"predecessor-version":[{"id":1869,"href":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/wp-json\/wp\/v2\/pages\/1852\/revisions\/1869"}],"up":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/wp-json\/wp\/v2\/pages\/1835"}],"wp:attachment":[{"href":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/wp-json\/wp\/v2\/media?parent=1852"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}