Does the Crime Fraud Exception Apply to Work-Product Materials?

December 12, 2001

Courts strip the attorney-client privilege from communications that relate to the client’s planning for or engagement in a crime or fraud. This doctrine has generated substantial judicial debate. Among other things, courts disagree about a fundamental issue—does the crime/fraud exception also apply to materials protected by the work-product doctrine?

The court in State Compensation Insurance Fund v. The Superior Court of Los Angeles County, 111 Cal. Rptr. 2d 284, 292 (2001) stated clearly that “the crime/fraud exception does not apply to attorney work product documents.” Other courts disagree. See e.g., George v. Siemens Indus. Automation, Inc., 182 F.R.D. 134, 141 (D.N.J. 1998).

A lawyer facing a situation in which the crime/fraud exception might apply should determine whether the pertinent jurisdiction applies the exception to work-product materials in addition to privileged communications.