Paul manafort, monica lewinsky, and the penn state three case: When should the crime-fraud exception vitiate the attorney-client privilege?

This Article examines the application of the crime-fraud exception to the attorney-client privilege in cases involving efforts to use an attorney-client relationship to conceal past misconduct. The Article concludes that the law in some jurisdictions, including Pennsylvania, may make it too difficult to establish that the crime-fraud exception applies in such cases. Accordingly, it argues that the test for application of the exception should require only credible evidence of the client's intentional misuse of the attorney-client relationship, particularly when the misuse of the attorney's services is intended to cover up an ongoing course of criminal conduct such as a conspiracy to obstruct justice.