Illinois Court of Appeals on burden of proof needed to support argument that crime-fraud exception defeats claim of privilege

The Illinois Court of Appeals has issued an opinion in a case called People v. Radojcic on the level of proof necessary to support a claim that the crime-fraud exception to the attorney-client privilege applies.  You can read the full opinion here.

In this case, the state wanted to have the defendant's attorney testify and the defendant objected arguing the communication was privileged.   The state presented testimony to support its contention that the defendant communicated with the attorney to advance his attempts to commit crimes or fraud and the court held that that testimony was sufficient to meet its burden.

Specifically, the court stated that

"[t]o defeat the privilege, the party seeking disclosure must show "that a prudent person has a reasonable basis to suspect the perpetration or attempted perpetration of a crime or fraud, and that the communications were in furtherance thereof." . . . Often, only the communication itself can show that the privilege does not apply. . . . In some such cases, when other evidence fails to show that the client has lost the privilege, the trial court may hear evidence in camera to determine whether the privilege applies. Before hearing evidence in camera, the judge should require the party seeking disclosure to show facts that would support a reasonable belief "that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies."

Based on this analysis, the court concluded that

"[b]efore the trial court excludes testimony from an attorney because of attorney-client privilege, the court must consider whether the party seeking to use the testimony has made a sufficient showing to give the court reason to question witnesses in camera to determine whether the attorney-client privilege applied to the communications between the attorney and the client. We find that the State presented testimony that would give a reasonable person cause to suspect that the client here used his communications with his attorney to advance his attempts to commit crimes or fraud. Accordingly, we hold that attorney-client privilege does not preclude testimony from the attorney here, and we reverse, and remand for a trial at which the State may call the attorney as a witness."