Washington State Judicial Decisions Recognizing the Crime-Fraud Exception
 

In Hartness v. Brown, 21 Wash. 655, 668 (1899), the supreme court stated:

"The rule, however, is well settled that communications made to counsel in contemplation of fraud or a criminal act are not privileged."
In State v. Richards, 97 Wash. 587, 591 (1917), the supreme court stated:
"The rule [of confidentiality] does not extend to communications respecting proposed infractions of the law, and so there is no privilege as to communications made in contemplation of the future commission of a crime, or perpetration of a fraud, in which, or in avoiding the consequences of which, the client asks the advice or assistance of the attorney."
In State v. Metcalf, 14 Wn. App. 232, 239-40 (1975), the appeals court stated:
"[T]he attorney-client privilege in not applicable when the advice sought is in furtherance of a crime or fraud. It does not matter that the attorney was unaware of his client's purpose for seeking the advice. If the defendant was indeed consulting the attorney about the use of a false affidavit which he planned to procure from Suzanne Satiacum, then it was in furtherance of a crime, and the attorney-client privilege was inapplicable." (Citations omitted.)
In Whetstone v. Olson, 46 Wn. App. 308, 310 (1986), the appeals court stated:
        "It is well established that the attorney/client privilege does not extend to communications in which the client seeks advice to aid him in carrying out an illegal or fraudulent scheme.
        "Although the exception was at one time limited to criminal activity, it also is now well settled that this exception is applicable to advice or aid secured in the perpetration of a civil fraud. The rationale for excluding such communications from the attorney/client privilege is that the policies supporting the existence of the privilege are inapplicable where the advice and aid sought refers to future wrongdoing rather than prior misconduct.
        "It does not matter that the attorney was unaware of his client's purpose for seeking the advice. His knowledge or participation is not necessary to application of the exception. However, the exception applies only when the client knows, or reasonably should know, that the advice is sought for a wrongful purpose. Good faith consultations with attorneys by clients who are uncertain about the legal implications of a proposed course of conduct are entitled to the protection of the privilege even if that action should later be held improper." (Citations omitted.)
In State v. Hansen, 122 Wn.2d 712, 720-21, 862 P.2d 117 (1993), the supreme court stated:
        "The attorney-client privilege is not applicable to a client's remarks concerning the furtherance of a crime, fraud, or to conversations regarding the contemplation of a future crime. [citing the Richards and Metcalf cases.] Hansen's statement that he was going to blow away the judge, prosecutor and public defender falls under this exception to the attorney-client privilege.
        ....
        To decide this case, we must determine whether an attorney has an affirmative duty to warn judges of true threats made by his or her client or by third parties. Whether a threat is a true or real threat is based on whether the attorney has a reasonable belief that the threat is real. We hold that attorneys, as officers of the court, have a duty to warn of true threats to harm members of the judiciary communicated to them by clients or by third parties."

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