Q. I am aware of the attorney-client privilege and the crime-fraud exception with regard to attorneys for private parties, but does it apply in the case of attorneys with the government? Put simply, can government employees use government attorneys to further known fraud and illegal activities, and are those communications covered under the attorney-client privilege or can the privilege be pierced?
A. I am not aware of a FOIA case in which the court has actually overruled an agency’s withholding based on the crime-fraud exception, but district courts appear to be willing to consider its applicability. In 2014, for example, the Southern District of New York ultimately rejected that the exception applied to disputed documents, but stated that it was “skeptical of the government's contention that the crime-fraud exception has no applicability in the FOIA context." Nat'l Immigration Project of Nat'l Lawyers Guild v. DHS, No. 11-3235, 2014 WL 6850977 (S.D.N.Y. Dec. 3, 2014). The court reasoned that "it is utterly implausible to suppose that Congress intended FOIA Exemption 5 to shield government documents when they were created for the purpose of furthering a crime or a fraud."
Additionally, in 2015. the Eastern District of Pennsylvania evaluated whether records withheld in FOIA case under the attorney-client privilege fell within the crime-fraud exception (which the court stated was a “well-known” exception), but it concluded upon review of the disputed records that there was no evidence of crime or fraud. Pellegrino v. TSA No. 09-5505 (E.D. Pa. May 6, 2015). More recently, however, the Southern District of New York noted that it was “unclear whether a court construing FOIA could properly order disclosure based on the applicability of [the crime-fraud] exception.” Sorin v. U.S. DOJ, 280 F. Supp. 3d 550 (S.D.N.Y 2017).