State v. Taylor

The crime-fraud exception requires the party seeking the exception demonstrate the client knew his intended conduct was unlawful.

Defendant appealed his DUII conviction claiming the trial court erred in ruling he waived the attorney-client privilege. The defendant failed a Breathalyzer test while in police custody. At trial, the defendant challenged the test’s validity. The prosecutor then cross-examined the defendant on whether he discussed the test with his attorney. The trial court overruled defense counsel’s objections, stating the privilege was waived. On appeal, the state claimed its questions targeted non-privileged information under the crime-fraud exception, and they constituted harmless error. The crime-fraud exception states that there is no attorney-client privilege if the use of the lawyer was obtained with the intent to enable someone to plan or commit a crime or fraud. The crime-fraud exception also required the party seeking the exception to demonstrate the client knew his intended conduct was unlawful. The Court of Appeals held the state did not demonstrate by direct evidence that the client knew his conduct was unlawful and that impeachment by prior inconsistent statement was not a basis for the crime-fraud exception. The Court also held that the error was not harmless, because the state used the evidence to attack the credibility of the defendant and his attorney. Reversed and remanded.