Sunken Ships, Misstatements And The Crime-Fraud Exception

Law360, New York (October 27, 2015, 10:18 AM EDT) -- The crime-fraud exception kills the attorney-client privilege. It prevents the assertion of the privilege when the client "sought or employed legal representation" to "commit or facilitate a crime or fraud." But does its application mean that every document responsive to a grand-jury subpoena is subject to production? The U.S. Court of Appeals for the First Circuit addressed that issue in the ever-so-descriptive In re Grand Jury Proceedings (Sept. 4, 2015). The ruling analyzed the application of the crime-fraud exception to documents that were subpoenaed from attorneys who helped the appellant file an admiralty claim for salvage. The opinion also required creation of a privilege log to avoid waiving in camera review to determine which individual documents fall within the exception, even if the party seeking the in camera review is not the party subpoenaed....

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