Attorney-client privilege’s crime-fraud exception in family court

The recent FBI search of the records of Michael Cohen, President Trump’s attorney, has raised issues of attorney-client privilege and the crime-fraud exception to that privilege. Attorney-client privilege is the client’s right (and the attorney’s obligation) to shield a client’s disclosures to the attorney and that attorney’s advice to the client from exposure to others absent the client’s consent. However this privilege does not extend to information a client provides an attorney to commit fraud or a crime and the advice the attorney provides to further the fraud or crime if the client then uses that advice to commit the fraud or crime. This waiver of attorney-client privilege was first recognized by the United States Supreme Court in Clark v. United States, 289 US 1 (1933).

Normally, in family court proceedings, I want my clients to be forthcoming with all relevant information about their case so that I can have a greater understanding of the facts and provide them better advice. However clients frequently try to hide information from the court or present false information to the court. Family law attorneys should be mindful of the situations in which this is likely to happen. Advice that furthers a fraud on the court not only loses the shield of attorney-client privilege, it also violates an attorney’s ethical duty of candor towards the tribunal and can lead to discipline. See South Carolina Rule of Professional Conduct 3.3(a)(3) (A“ lawyer shall not knowingly: … offer evidence that the lawyer knows to be false”).

There are a few common areas in which South Carolina family law clients seek advice that may further such fraud. One area is folks seeking to shorten the one-year waiting period for a no-fault divorce. Every so often someone will ask me if he or she can shorten the waiting period for divorce by falsely acknowledging adultery. Family law attorneys cannot advise such clients on how to falsely obtain a fault divorce. One can advice such potential clients to seek separate maintenance or to contact the attorney shortly before the year expires.

One of the areas where clients often attempt to engage in fraud is with financial declarations. Sometimes clients have hidden assets or unknown side-jobs. When such clients seek advice on how to fill out a financial declaration without disclosing these assets or income, an attorney cannot provide such advice. Further an attorney who is aware that the client has failed to disclose assets or income in a financial declaration cannot file that financial declaration with the court.

Another area where clients often attempt to engage in fraud is on the issue of substance abuse testing. Clients will sometimes indicate a fear of failing such tests and want to discuss the possibility of using products that alter urine or hair to create a false negative test. Again, an attorney cannot advice a client on the use of such products or knowingly provide the test results from an adulterated urine or hair sample as evidence of a clean test.

The final area where clients often attempt to engage in fraud is on the issue of adultery. While an attorney who unwittingly presents a false denial of the client’s adultery to the court does not engage in misconduct, an attorney who assists the client in falsely denying adultery does.

The desire to provide clients legal advice that furthers their goals can sometime conflict with a prohibition against providing advice that furthers fraud or crime. The duty of loyalty to the client does not encompass a duty to assist in fraud. Ironically, when clients are caught in such frauds on the court, they frequently accuse their attorney of advising them to commit the fraud–demonstrating a lack of reciprocal loyalty. Once informed by a client of a desire to commit fraud on the court, an attorney should not provide advice that furthers that fraud. Doing so removes attorney-client privilege and subjects that attorney to discipline.

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