1. Under the crime-fraud exception, the attorney-client privilege does not apply to communications in which the client seeks the services of the lawyer for the purpose of engaging in crime or fraud. It is not required that the lawyer actually know the client's intent or that the lawyer acquiesce in the crime or fraud. In addition, the exception applies even when the client did not intend to commit crime or fraud when he consulted the lawyer, but subsequently makes use of the lawyer's advice or services in connection with crime or fraud. But only future (or ongoing) crime or fraud trigger the exception. Communications concerning past crime or fraud do not. (Determining what is future and what is past crime or fraud is not easy, however.)

2. Keep in mind that if the communications are not for the purpose of obtaining legal advice, then the attorney-client privilege does not attach at all. So if someone simply says to a lawyer that he plans to rob a bank, without saying this to the lawyer in order to get any sort of legal advice, then the communication is not privileged -- without having to look to the crime-fraud exception. On the other hand, the crime-fraud exception will apply to all communications in furtherance of the criminal or fraudulent activity or closely related to it. The question then arises whether a client could ever tell his lawyer about future crime or fraud in a way that would be privileged. It would have to be for the purpose of receiving legal advice (otherwise the privilege wouldn't apply at all) but the legal advice requested must not be in furtherance of the crime or closely related to it (or the crime-fraud exception would apply). Do any examples of this exist?

3. With this in mind, consider the following scenarios:

a. A lawyer is defending his client for arson and the client tells him, as an aside and merely to show off, that he plans to shoplift something after he leaves the lawyer's office. The lawyer strongly warns the client about the legal penalties for shoplifting. Is the discussion privileged?

b. Consider a murder defendant out on bail who asks his lawyer what countries have extradition treaties with the United States. Is that conversation privileged?

c. A client comes to you to ask whether he can sue someone. You tell him that the facts as he has related them to you are missing X, a crucial element for the cause of action. He thanks you and goes to another lawyer, recounting the story with X included. He testifies to X at trial. May your testimony concerning your conversation with the client be used to impeach his testimony?

4. What evidence may be used to argue that the crime-fraud exception applies? Clearly to allow the privilege to be overcome upon the mere assertion of fraud or crime would eviscerate the privilege. On the other hand requiring fraud or crime to be proved by independent evidence (that is, evidence other than the ostensibly privileged matter) would undermine the purpose of the exception, which is to keep the attorney-client relationship from being used as a means of hiding ongoing crime or fraud. How can this problem be solved?