Saturday, October 21, 2023

Crime- Fraud Exception

The Indiana Court of Appeals affirmed a conviction, rejecting the contention of the criminal defendant that admission of her former attorney's testimony violated the attorney-client privilege

Here, Brook’s communications with Achey were not privileged because they were made for the purpose of perpetrating a fraud on the State and trial court and for the purpose of committing the crime of obstruction of justice. Achey’s trial testimony revealed that Brook provided him with a copy of a receipt indicating that she had been prescribed Lorazepam by Dr. Kochert and that a prescription for Lorazepam had been filled at a Pay Less Pharmacy in Lafayette. Tr. Vol. 2 p. 118. Brook also told Achey that she did not carry the pills in their original pill bottle to work because she was nervous the pills would be stolen. Id. After Dr. Kochert was deposed and testified that she had never prescribed Lorazepam to Brook, Brook became “very apologetic” and admitted to Achey that she did not have a valid prescription for Lorazepam and that the document she had presented to him had been created either by herself or another individual. Id. at 125–26. This evidence provided a reasonable basis upon which a prudent person could have suspected that Brook was attempting to commit a fraud on the court system and was committing the crime of obstruction of justice. See Lahr, 731 N.E.2d at 483. Further, the State demonstrated a relationship between the communications and the attempted fraud because, in providing the fraudulent prescription record to Achey, Brook intended to use him to attempt to obtain dismissal of the unlawful possession or use of a legend drug charge against her. We, therefore, find that both parts of the test from Lahr were met in this case.

Brook asserts that the attorney-client privilege could give way only if Achey was involved in the perpetration of her fraud. Brook reads Lahr as only allowing the admission of attorney-client communications when they were made for the purpose of committing or continuing a crime or fraud. And therefore, because the trial court found “no indication [Achey] did anything wrong,” it was an error for the trial court to allow the statements to be admitted. Supp. Tr. Vol. 2
p. 24. However, in Lahr, the defendant forged two letters for the purpose of bolstering his self-defense argument and enlisted the aid of his attorney in furtherance of a continuing crime or fraud, and this court held that the “information concerning this subterfuge is not protected by the attorney-client privilege.” Lahr, 731 N.E.2d at 484. Both here, and in Lahr, the client used the attorney, by presenting the forged or false documents as evidence in a criminal proceeding, to perpetuate the crime or fraud. Lahr did not limit admission of attorney-client communications to only situations where the attorney had culpability for the perpetration of the crime. Therefore, we conclude that Brook’s communications to Achey fell within the crime-fraud exception to the attorney-client privilege, and the trial court did not abuse its discretion when it admitted them into evidence.

(Mike Frisch)

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