No Privilege to Pollute: Expanding the Crime-Fraud Exception to the Attorney-Client Privilege

By Tom Lininger. Full Text.

This Article argues that a venerable rule of evidence—the attorney-client privilege—is due for reform. In particular, I propose the expansion of the crime-fraud exception to the attorney-client privilege. The exception presently only applies to crimes and civil frauds. I argue that the exception should extend to certain violations of civil environmental law. I offer a model statute that states could incorporate in their evidence codes.

The benefits of this Article’s proposal could be significant. An enlarged exception to the attorney-client privilege would increase accountability for past environmental harm and would better facilitate remediation. In addition, this Article’s proposal would enhance deterrence of future environmental harm in the same way that the crime-fraud exception now deters the crimes and civil frauds in which lawyers could be complicit. The proposal would also improve the alignment of the attorney-client privilege and the ethical duty of confidentiality.

Another benefit of this Article’s proposal would be to narrow the disparity in the ability of prosecutors and private plaintiffs’ attorneys to use the exception successfully. That disparity has become especially worrisome now that federal environmental prosecutions have dwindled to the lowest level in the past thirty years. Private plaintiffs’ attorneys need equal standing under the crime-fraud exception so that they can function as “private attorneys general” and help to offset federal dereliction in the enforcement of environmental law. This Article’s proposal would put the focus of the crime-fraud exception back where it should be: on the misconduct of the privilege holder, not on the identity of the party seeking to overcome the privilege.