Does the Crime-Fraud Exception Apply to Work Product?

March 29, 2006

For obvious reasons, the attorney-client privilege does not protect communications between clients and their lawyers designed to further the client’s future criminal wrongdoing. However, courts have taken a mixed approach to whether the same principle can apply to a lawyer’s work product.

In Jinks-Umstead v. England, 233 F.R.D. 49, 51 (D.D.C. 2006), the court held that the crime-fraud exception can apply to work product ‑‑ explaining that “[t]he relevant question is: ‘Did the client consult the lawyer or use the material for the purpose of committing a crime or fraud?'”

Although the court found the crime-fraud exception inapplicable under the circumstances of that case, lawyers should remember that the crime-fraud doctrine can apply to their work product in addition to their communications with clients.