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48 Cap. U. L. Rev. 1 (2020)

handle is hein.journals/capulr48 and id is 1 raw text is: USING POLICY TO RESOLVE THE CIRCUIT SPLIT OVER THE CRIME-FRAUD EXCEPTION TO THE ATTORNEY- CLIENT PRIVILEGE BLAKE R. HILLS* I. INTRODUCTION In early 2018, the FBI raided the office of the personal attorney for the President of the United States to look for evidence of illegal payments to an adult-film actress.' This action resulted in a legal dispute about whether the materials that were seized were protected by the attorney-client privilege or whether the crime-fraud exception to the privilege applied.2 Although individual presidents and adult-film stars will come and go, the need for clear rules on the crime-fraud exception to the attorney-client privilege will not. Everyone who has watched a modern police drama is familiar with the pre-interrogation warning: [y]ou have the right to remain silent and the right to talk to a lawyer, from Miranda v. Arizona.3 But what does the right to talk to a lawyer mean? Does it mean that a client has an absolute right to speak to a lawyer without the contents of that conversation ever being revealed? Or does it mean that the government can become privy to some attorney-client conversations? If the government can become privy to some conversations, what is the standard for determining when this should be allowed? * Prosecuting Attorney, Summit County Utah Attorney's Office. J.D., S.J. Quinney University of Utah College of Law (1998). The views and opinions expressed in this article are solely those of the author and do not necessarily reflect those of the Summit County Attorney's Office. 1 See Matt Apuzzo, F.B.L Raids Office of Trump's Longtime Lawyer Michael Cohen: Trump Calls It 'Disgraceful', N.Y. TIMEs (Apr. 9, 2018), httns.//wwwmntimes.com/ 201 8/04/0 9/us/politics/fbi-mids-office-of-liu m s-longtime-4awver-mchael-cohen. html [https://perma.cc/RYA2-JMZQ]. 2 See Jan Wolfe, Factbox: How Does U.S. Attorney-Client Privilege Rule Apply to FBI Raid on Trump's Lawyer?, REUTERS (Apr. 16, 2018), https://www.reuters.com/article/us-usa- trump-russia-privile ge-factbox/factbox-how-does-u-s-attorney-client privileg ue-eapples to-fbi-raid-on-tramps-lawyer-idUSKBNIHN32R [https://perma.cc/M8QP-W66H]. 3 384 U.S. 436, 444 (1966) (holding that appropriate procedural safeguards are to be used to protect a suspect's right against self-incrimination and to inform the suspect of the right to counsel).