In Re Sealed Case (Lewinsky)

Brief Fact Summary. Once it became apparent that Monica Lewinsky had perjured herself in her affidavit submitted in response to a subpoena in the Paula Jones sexual harassment case, the district court determined that her communications with her attorney would no longer be privileged. She appeals this finding.

Synopsis of Rule of Law. The crime-fraud exception to attorney-client privilege does not apply when the client retained the attorney for unlawful or fraudulent purposes.

Facts. Monica Lewinsky retained attorney Francis Carter to represent her regarding the subpoena she had received to appear in the lawsuit that Paula Jones had brought against then-President Clinton in Arkansas. Lewinsky attempted to have the subpoena quashed by submitting an affidavit under penalty of perjury attesting that she had never had a sexual relationship with the President. Once it became apparent that this was a knowing misrepresentation, the district court deemed that the attorney-client privilege no longer applied and reviewed the relevant information in camera. Lewinsky and her attorney now appeal this decision.

Issue. Does the crime-fraud exception apply to Lewinksy’s communications with her attorney, or are they still privileged?

Held. Yes, the crime-fraud exception was properly applied by the district court. Lewinsky’s affidavit was based upon knowing misrepresentation regarding a material fact, suggesting that her entire purpose in retaining counsel was fraudulent.

Discussion. Clients retaining counsel for criminal or fraudulent purposes should not expect that their communications will be privileged.