Tuesday, September 10, 2013
Utah Rule of Evidence 504(b) sets forth Utah's attorney-client privilege:
A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications:
(1) made for the purpose of facilitating the rendition of professional legal services to the client; and
(2) the communications were between:
(A) the client and the client's representatives, lawyers, lawyer's representatives, and lawyers representing others in matters of common interest; or
(B) among the client's representatives, lawyers, lawyer's representatives, and lawyers representing others in matters of common interest.
That said, Utah Rule of Evidence 504(d)(1) contains a crime-fraud exception which vitiates the attorney-client privilege
If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud...
Talisker Land Holdings, LLC and Park City Mountain Resort are currently locked in a legal dispute over the terms of the ski area's lease of Talisker-owned property comprising much of the ski terrain above the base area. A few days ago, the judge found that the crime-fraud exception applied to a lease renewal letter and e-mails connected to it. Was he right?
Talisker's claim was that "[s]omebody [at PCMR] made a decision to change the date on th[e renewal] letter" and "somebody made a decision to sign it." Mr. Lund called the backdating of the letter "a deceitful scheme" and concluded that PCMR "deliberately tried to misrepresent this to us and doing that with your lawyer's help is not privileged."
Bruce Meyer, attorney for PCMR, then argued that one of Talisker's arguments for why privilege should not apply was not applicable. The judge would later rule in favor of Meyer's argument. Meyer was unsuccessful, however, in convincing the judge that the so-called "crime-fraud exception" of the Utah Rules of Evidence should not apply to the present facts. He argued that there was no evidence that any alleged "fraud" involved an attorney.
Judge Harris noted, however, that Cary Jones - an attorney - both drafted the letter and was present when it was signed. When he ruled that the crime-fraud exception may indeed apply to some of the emails at issue, he specifically noted Jones.
Judge Harris said PCMR's acknowledgement of the backdating was prima facie evidence "that there was at least an attempted fraud going on."
That's good enough for me and underscores an important point about the crime-fraud exception: It covers attempts, regardless of whether they are successful.