N/A

The television masterpiece Breaking Bad introduces the audience to the character Saul Goodman, a colossal sleezeball and unfortunate lawyer stereotype, together with the enduring cultural trope of attorneys as enablers of loopholes and criminal behavior. Saul proceeds to become a trusted business and legal advisor to the meth-cooking duo, while skimming his cut off the top of course. In a wide array of media from The Wire to The Wolf on Wall Street, lawyers occupy sideline positions as confidants of crooks and criminals, doing more to rig the scales of justice than zealously defend their clients’ interests. The idea of attorneys as fraud engineers became more pronounced following the Enron scandal and the financial crisis.

Although this cultural narrative of lawyers as tricksters or worse has roots at least as old as the New Testament, and ethical rules have long stood in some function to prevent socially deleterious lawyerly behavior, there seems to be newfound demand for higher responsibilities and duties towards society. Perhaps this is just clawback from what might be viewed as over-expansive privilege and confidentiality boundaries. Maybe it stems from the substantial and perhaps unprecedented social costs wrought by the near-collapse of the financial system during the recent recession or the spectacular implosion of Enron. One might even look at what seems to be unusual collapse of extremely high-value entities involved in fraudulent behavior such as Stratton Oakmont, Bernard L. Madoff Investment Securities, and Drexel Burnham Lambert. In the illustrious words of Rahm Emmanuel as Wall Street stood on the brink, you do not want to waste a crisis. Whatever the underlying combination of factors, the twenty-first century...

... middle of paper ...

...ust be an instrumentality towards wrongful behavior is key in determining whether the crime-fraud exception applies. It is not enough that criminal action is taken while legal advice is sought on other matters or a client acts on his own accord later in time after seeking counsel. Consultations sought after criminal or fraudulent behavior do not trigger the exception—as they encapsulate the kind of counsel-seeking behavior privilege incentivizes—provided the counsel is not sought to bury the behavior, in which case such legal advice would constitute action in furtherance of the crime or fraud. This tension between legal advice sought to further crime (an action seen as socially detestable and outside of the duty of secrecy) and prosocial, attorney-seeking behavior underlies the controversy at the heart of the erosion of privilege as standards for lawyers evolve.