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Attorney-client Communications, § 905.03 – Crime-Fraud Exception

Harold C. Lane, Jr., v. Sharp Packaging, 2002 WI 28, on certification

Issue/Holding: Although a mere allegation is insufficient, the burden for establishing a prima facie case of the attorney-client crime-fraud exception is low — reasonable cause (i.e., more than suspicion but less than preponderance-of-evidence) to believe that the attorney’s services were utilized in furtherance of the ongoing unlawful scheme. ¶50, quoting United States v. Chen, 99 F.3d 1495, 1503 (9th Cir. 1996). “Once the circuit court determines the prima facie case has been established, an in camera review is the proper procedure to determine if the crime-fraud exception to the lawyer-client privilege applies.” ¶55. The decision to hold an in camera review is discretionary, as informed by the factors outlined in United States v. Zolin, 491 U.S. 554, 572 (1989). ¶56.

The court requires an in camera inspection in this case but doesn’t really say why, except: “”Only by reviewing the documents at issue is the circuit court able to determine whether [counsel’s] legal services were rendered in furtherance of fraud.” Id.


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