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Radzinschi / ALM The FBI search of Trump attorney Michael Cohen’s office triggered widespread speculation about the contours of the crime-fraud exception to the attorney-client privilege. But don’t look to the U.S. Supreme Court for much enlightenment. Four years ago, the justices passed on an opportunity to fill in the blanks left open by the court’s last substantive ruling on the crime-fraud exception—the  1989 decision in United States v. Zolin. Communication between a lawyer and a client that is intended to further a crime or fraud is not protected by the attorney-client privilege. President Donald Trump bemoaned the death of the attorney-client privilege after the Cohen raid, to which one critic replied : “Long live the crime-fraud exception.” Since 1989, federal district and appellate courts have taken a variety of sometimes conflicting approaches to open questions concerning the exception: When can a judge interview a lawyer in chambers to evaluate whether the crime-fraud exception applies, and what is the ultimate standard of proof for applying the crime-fraud exception? Attorneys from Blank Rome  in 2014  filed a petition for review in In re Grand Jury Subpoena, No. 14M14, urging the court to take up the crime-fraud exception. They argued that the U.S. Court of Appeals for the Third Circuit, in its approach to the crime-fraud exception, had significantly eroded the attorney-client privilege. Blank Rome’s petition arose from a grand jury investigation into alleged violations of the Foreign Corrupt Practices Act.

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