crime-fraud exception in Delaware

2021Evid. 502(d). 85 Buttonwood, 2018 WL 346036 , at *6 (quoting Vergano, 883 A.2d at 54 ). 86 See id. 87 Id. (alteration in original) (emphasis added) (quoting In re Sutton, 1996 WL 659002 , at *11 (Del. Super. Aug. 30, 1996)). 88 Id. at *6 (quoting In re Grand Jury Subpoena, 745 F.3d 681, 693 (3d Cir. 2014)).

2018Co., 883 A.2d at 59 n.26 (quoting In re Richard Roe, Inc., 68 F.3d 38, 40 (2d Cir. 1995)). 36 In re Grand Jury Subpoena, 745 F.3d at 693 . 13 “merely upon a showing that the client communicated with counsel while the client was engaged in criminal [or fraudulent] activity.”37 The Defendants argue that the crime-fraud exception is inapplicable here because the Plaintiffs have disclaimed any intention of bringing a fraud claim. 38 As the Defendants point out, at the motion-to-dismiss stage, the Plaintiffs styled their claim as one for breach of fiduciary duties stemming from, among other things,

2021Delaware Rule of Evidence 502(d)(1) provides that the privilege does not apply “[i]f the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.” 84 “To invoke the crime-fraud exception, ‘a mere allegation of fraud is not sufficient.’”85 It does not apply only because a client communicated with her counsel while engaged in criminal or fraudulent acts.86 Instead, the proponent must “make[] a prima facie showing that the confidential communications were made in furtherance of a

2018Co., 883 A.2d at 59 n.26 (quoting In re Richard Roe, Inc., 68 F.3d 38, 40 (2d Cir. 1995)). 36 In re Grand Jury Subpoena, 745 F.3d at 693 . 13 “merely upon a showing that the client communicated with counsel while the client was engaged in criminal [or fraudulent] activity.”37 The Defendants argue that the crime-fraud exception is inapplicable here because the Plaintiffs have disclaimed any intention of bringing a fraud claim. 38 As the Defendants point out, at the motion-to-dismiss stage, the Plaintiffs styled their claim as one for breach of fiduciary duties stemming from, among other things,

2023Id. at 14-15. 42 First Del. Act., D.I. 210 at 4, 6-9.

2018The pleading standards for claims asserting breaches of the duty of disclosure are governed by Chancery Court Rule 8.”). 40 See In re Grand Jury Subpoena Duces Tecum Dated Sept. 15, 1983, 731 F.2d 1032, 1038 (2d Cir. 1984) (“Whereas confidentiality of communications and work product facilitates the rendering of sound legal advice, advice in furtherance of a fraudulent or unlawful goal cannot be considered 14 with equal force to a client who hires an attorney to help him commit an intentional breach of fiduciary duty premised on deceiving stockholders about a significant transaction.41 Nonethel

2018Co., 883 A.2d at 59 n.26 (quoting In re Richard Roe, Inc., 68 F.3d 38, 40 (2d Cir. 1995)). 36 In re Grand Jury Subpoena, 745 F.3d at 693 . 13 “merely upon a showing that the client communicated with counsel while the client was engaged in criminal [or fraudulent] activity.”37 The Defendants argue that the crime-fraud exception is inapplicable here because the Plaintiffs have disclaimed any intention of bringing a fraud claim. 38 As the Defendants point out, at the motion-to-dismiss stage, the Plaintiffs styled their claim as one for breach of fiduciary duties stemming from, among other things,

2018Co., 883 A.2d at 59 n.26 (noting that the “exception does not apply simply because privileged communications would provide an adversary with evidence of a crime or fraud” (quoting In re Richard Roe, Inc., 68 F.3d at 40 )). 45 Id. (quoting In re Richard Roe, Inc., 68 F.3d at 40 ). 46 See id. at 55 (noting that the crime-fraud exception is “bottomed on the assumption that the client has actively sought out legal advice from the lawyer, in order for the client to plan how he will carry out a crime or fraud”). 47 The Plaintiffs have not requested that I conduct an in camera review of the privilege

2018Co., 883 A.2d at 59 n.26 (quoting In re Richard Roe, Inc., 68 F.3d 38, 40 (2d Cir. 1995)). 36 In re Grand Jury Subpoena, 745 F.3d at 693 . 13 “merely upon a showing that the client communicated with counsel while the client was engaged in criminal [or fraudulent] activity.”37 The Defendants argue that the crime-fraud exception is inapplicable here because the Plaintiffs have disclaimed any intention of bringing a fraud claim. 38 As the Defendants point out, at the motion-to-dismiss stage, the Plaintiffs styled their claim as one for breach of fiduciary duties stemming from, among other things,

2018But it is not enough to show that an attorney’s advice was sought before a decision was made not to disclose information that is alleged, as a matter of hindsight, to have been material.”); In re Sealed Case, 107 F.3d 46, 50 (D.C.

2005See, e.g., In re Ryder, 263 F.Supp. 360, 365 (E.D.Va.1967) aff'd, 381 F.2d 713 (4th Cir.1967) (holding attorney’s possession of stolen gun and money for client is not encompassed within attorney-client privilege); Morrell v. State, 575 P.2d 1200 (Alaska 1978) (reaffirming rule that criminal defense attorney must turn over to the prosecution real evidence that the attorney obtains from his client); People v. Lee, 3 Cal.App.3d 514 , 83 Cal.Rptr. 715 (1970) (holding attorney-client privilege does not give lawyer the right to withhold evidence). 23 .

2005E.g., United States v. Gordon-Nikkar, 518 F.2d 972, 974-75 (5th Cir.1975) (holding the crime-fraud exception applied when there was evidence that an attorney counseled his clients to perjure themselves about possession of cocaine); State Farm Fire and Cas.

2005See, e.g., In re Ryder, 263 F.Supp. 360, 365 (E.D.Va.1967) aff'd, 381 F.2d 713 (4th Cir.1967) (holding attorney’s possession of stolen gun and money for client is not encompassed within attorney-client privilege); Morrell v. State, 575 P.2d 1200 (Alaska 1978) (reaffirming rule that criminal defense attorney must turn over to the prosecution real evidence that the attorney obtains from his client); People v. Lee, 3 Cal.App.3d 514 , 83 Cal.Rptr. 715 (1970) (holding attorney-client privilege does not give lawyer the right to withhold evidence). 23 .