crime-fraud exception in New York

2016As an additional layer of protection, the crime-fraud exception to the attorney-client privilege continues to permit discovery of communications "when the advice sought relates 'not to prior wrongdoing, but to future wrongdoing' " (BDO Seidman, LLP, 492 F3d at 818 , quoting Zolin, 491 US at 562-563 [internal quotation marks omitted]; see In re New York City Asbestos Litig., 109 AD3d 7 , 10-11 [1st Dept 2013] [crime-fraud exception applies to communications made in furtherance of the fraud or crime]).

2015This court had found on the record on April 10, 2015 that the “lesser evidentiary showing . . . needed to trigger in camera review” under the crime-fraud exception to the attorney-client privilege was made out here (see Matter of New York City Asbestos Litig., 109 AD3d 7 , 11 [1st Dept 2013], citing United States v Zolin, 491 US 554, 572 [1989]).

2015As necessary to establish the crime-fraud exception, there is a factual basis for “probable cause to believe that” the communications involved possible client wrongdoing and that the communications with the attorney in question may have been in furtherance of such wrongdoing (Matter of Grand Jury Subpoena, 1 AD3d 172, 173 [1st Dept 2003] [backdated documents] [Nowlin]).

2015Moreover, defendant failed to show a sufficient basis for applying the crime-fraud exception to the attorney-client privilege (see Matter of Grand Jury Subpoena, 1 AD3d 172, 173 [1st Dept 2003]).

2024Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 1 AD3d 223, 224 [1st Dept 2003]).

2013Co. v Wilson, Riser, Moskowitz, Rdelman & Dicker, 1 AD3d 223, 224 [1st Dept 2003]). “[A]dvice in furtherance of a fraudulent or unlawful goal cannot be considered ‘sound.’ Rather advice in furtherance of such goals is socially perverse, and the client’s communications seeking such advice are not worthy of protection” (In re Grand Jury Subpoena Duces Tecum Dated Sept. 15, 1983, 731 F2d 1032, 1038 [2d Cir 1984]).

2019Inasmuch as plaintiff argues that the crime-fraud exception applies to the attorney-client privilege between Lynch and defendants, there is no factual basis for finding that Lynch's alleged recommendation and his involvement in the disciplinary charges against plaintiff are committed in furtherance of a fraud or crime ( see Art Capital Group LLC v Rose , 54 AD3d 276, 277 [2008]), and Lynch's testimony will relate solely to the nature of his legal services rendered in the case and the disciplinary action ( see Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7 [a] [2]).

2013The crime-fraud exception encompasses “ ‘a fraudulent scheme, an alleged breach of fiduciary duty or an accusation of some other wrongful conduct’ ” (Art Capital Group LLC v Rose, 54 AD3d 276, 277 [1st Dept 2008], quoting Ulico Cas.

2013A party seeking “to invoke the crime-fraud exception must demonstrate that there is a factual basis for a showing of probable cause to believe that a fraud or crime has been committed and that the communications in question were in furtherance of the fraud or crime” (United States v Jacobs, 117 F3d 82, 87 [2d Cir 1997]; see also Ulico Cas.

2013A party seeking “to invoke the crime-fraud exception must demonstrate that there is a factual basis for a showing of probable cause to believe that a fraud or crime has been committed and that the communications in question were in furtherance of the fraud or crime” (United States v Jacobs, 117 F3d 82, 87 [2d Cir 1997]; see also Ulico Cas.

2025A party seeking to invoke the crime-fraud exception must demonstrate that there is a factual basis for a showing of probable cause to believe that a fraud or crime has been committed and that the communications in question were in furtherance of the fraud or crime” (In re New York City Asbestos Litig., 109 AD3d 7 , 10-11, 966 NYS2d 420 [1st Dept 2013] [internal quotations and citations omitted]).

2025A party seeking to invoke the crime-fraud exception must demonstrate that there is a factual basis for a showing of probable cause to believe that a fraud or crime has been committed and that the communications in question were in furtherance of the fraud or crime” (In re New York City Asbestos Litig., 109 AD3d 7 , 10-11, 966 NYS2d 420 [1st Dept 2013] [internal quotations and citations omitted]).

2013GP appeals, arguing that plaintiffs failed to make the necessary showings to warrant in camera review of internal privileged communications or production of work product data and that ordering that review and production is an unwarranted intrusion into GP’s privileged communications. 1 The motion court providently exercised its broad discretion in supervising disclosure when it confirmed Recommendation #1 and granted in camera review of the documents to determine whether the crime-fraud exception to the attorney-client privilege applied (see Those Certain Underwriters at Lloyds, London v Occid

2013GP appeals, arguing that plaintiffs failed to make the necessary showings to warrant in camera review of internal privileged communications or production of work product data and that ordering that review and production is an unwarranted intrusion into GP’s privileged communications. 1 The motion court providently exercised its broad discretion in supervising disclosure when it confirmed Recommendation #1 and granted in camera review of the documents to determine whether the crime-fraud exception to the attorney-client privilege applied (see Those Certain Underwriters at Lloyds, London v Occid

2018Plaintiffs' request to compel defendants to produce certain documents withheld on the basis of attorney-client privilege was properly denied, because plaintiffs failed to make the requisite evidentiary showing to warrant either application of the crime-fraud exception or in camera review by this Court ( see Matter of New York City Asbestos Litig. , 109 AD3d 7 , 10-11 [1st Dept 2013], lv dismissed 22 NY3d 1016 [2013]; Horizon Asset Mgt., Inc. v Duffy , 82 AD3d 442, 443 [1st Dept 2011]).

2012Plaintiffs failed to demonstrate the applicability of the crime-fraud exception to the attorney-client privilege (see Horizon Asset Mgt., Inc. v Duffy, 82 AD3d 442 [2011]; Galvin v Hoblock, 2003 WL 22208370 , *4-5, 2003 US Dist LEXIS 16704 , *12-15 [SD NY 2003]).

2019With respect to defendant's claim of attorney-client privilege, we find that the crime-fraud exception applied because there was reasonable cause to believe that the items seized pursuant to the search warrant constituted physical evidence of a crime and that their delivery to counsel was for the purpose of concealing evidence, not for seeking legal advice ( see People v Kimes , 37 AD3d 1, 27 [2006], lv denied 8 NY3d 881 [2007]).

2018Therefore, plaintiff's argument that the crime-fraud exception applies to pierce the attorney-client privilege is barred by the doctrine of law of the case ( see Matter of McGrath v Gold , 36 NY2d 406, 413 [1975]; Carmona v Mathisson , 92 AD3d 492, 492-493 [1st Dept 2012]; Politi v Irvmar Realty Corp. , 13 AD2d 469, 469 [1st Dept 1961]).

2018Therefore, plaintiff's argument that the crime-fraud exception applies to pierce the attorney-client privilege is barred by the doctrine of law of the case ( see Matter of McGrath v Gold , 36 NY2d 406, 413 [1975]; Carmona v Mathisson , 92 AD3d 492, 492-493 [1st Dept 2012]; Politi v Irvmar Realty Corp. , 13 AD2d 469, 469 [1st Dept 1961]).

2018Therefore, plaintiff's argument that the crime-fraud exception applies to pierce the attorney-client privilege is barred by the doctrine of law of the case ( see Matter of McGrath v Gold , 36 NY2d 406, 413 [1975]; Carmona v Mathisson , 92 AD3d 492, 492-493 [1st Dept 2012]; Politi v Irvmar Realty Corp. , 13 AD2d 469, 469 [1st Dept 1961]).

2016Furthermore, there is no evidence that the communication between plaintiff and her former attorney was “made ‘in furtherance ’ of a fraudulent scheme, an alleged breach of fiduciary duty or an accusation of some other wrongful conduct,’ ” and thus, contrary to defendant’s contention, the crime-fraud exception does not apply (Parnes v Parnes, 80 AD3d 948, 951 [2011]).

2011Surgical Design Corp. v Correa, 284 AD2d 528, 529 [2001]).

2003The subpoena’s demand for “any medical records provided by [petitioner] to [movant] at any time,” however, should have been quashed because the record does not indicate that there is probable cause to believe that a fraud or crime was committed each time a medical document was exchanged between petitioner and movant, or that there is probable cause to believe that communications in connection with each of those documents — however many there may have been — were in furtherance of a fraud or crime (cf. id.; see also In re Richard Roe, Inc., 168 F3d 69, 71 [1999]).

1989(United States v Hodge & Zweig, supra, at 1354; Matter of Pavlick, supra, at 1028; see also, Clark v United States, 289 US 1, 15 [1933]; Baird v Koerner, supra, at 634.) However, the cases cited make clear that the party seeking to invoke the crime-fraud exception must present a prima facie case that the attorney was retained for this "improper purpose”.

1989(United States v Hodge & Zweig, supra, at 1354; Matter of Pavlick, supra, at 1028; see also, Clark v United States, 289 US 1, 15 [1933]; Baird v Koerner, supra, at 634.) However, the cases cited make clear that the party seeking to invoke the crime-fraud exception must present a prima facie case that the attorney was retained for this "improper purpose”.