{"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 facilitated widespread voter fraud in the 2020 presidential election\u2014had no basis in fact, characterizing her statements instead as \u201cvituperative, abusive and inexact\u201dpolitical rhetoric. Powell\u2019s striking […]<\/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,"footnotes":""},"class_list":["post-1852","page","type-page","status-publish","hentry"],"acf":[],"_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}]}}