July 2010-MPT 01-Score 29.53-Written-ID 001

1) Under the some evidence standard.

Under the some evidence standard held by the US Courts of Appeal to overcome the privilege we can't use the crime-fraud exceptions only by asserting that the client retained the attorney to facilitate a crime or fraud. That inference is not enough, we need "some evidence" to show and prove the assertion that evidence could be the fact that attorney know and gave some advice about the furtherance of the crime. Like under State v. Sawyer where Novak knew about the bribery of his client. Novak at the point of giving legal advice could fail or it in helping his client in the legal representation. There should be some evidence to support that the attorney was suspicious, based on the information known to him before or during the communication facts that the client could tell the attorney based on his own criminal-fraudulent scheme. It should also be determined whether the fraudulent scheme was the primary outcome of the legal representation, or maybe the plan was already drawn at the point of advice, it should also taken into consideration if there were already some access to the client's information or if there were active representation or not yet, there was a regular contact or not or the attorney was retained just for a proper purpose, and if by the preponderance of evidence it is found that the attorney was not retained for improper purpose the confidentiality between attorney and client could not be infringed for no reason.

It can be inferred from the facts that Hammond fabricated his false statement that he was with a friend 60 miles away after contacting his lawyer Walker. It can also be inferred that Walker gave him an advice to tell the officer that he was with a friend and not participating in the arson. It is clear that there are suspicious facts about the arson. The main conflicting evidence is that Hammond lied about his being in the Lake place. It can for sure be inferred that Walker, after having initial conversation with Hammond advised him to tell the police about being with a friend and benefit from the statement, at that point it would be necessary for the evidence to be reviewed by the district court in camera and determine the status of the communication. And by preponderance of evidence find if that communication fall within crime fraud exception of the Franklin Rules of Evidence. It is clear that when making a statement over the phone with the policeman he already had some plans about his future claims for the payment from insurance company. From the fact it is also clear that Hammond has some debts, mortgage and was denied a loan from Gordon Savings and Loan Company. These facts alone are not enough to constitute "some evidence standard" that Walker helped him by representation to think about those fraudulent plans.

Since the "some evidence" standard requires more than just inference that attorney participated in the fraudulent scheme, the camera review is not triggered.

2) Under "probable cause" standard

"Probable cause" standard held by Columbia Supreme Court says that there should be a strong factual basis for the inference that the client retained the attorney for improper basis. There is a greater showing need under this standard.

There is no showing that Walker influenced Hammond in the furtherance of his plan, from the insurance company while participating in the arson himself. No evidence to show that Walker made Hammond lie to the police or draw fraudulent plans.

Since the communications between Walker and Hammond as an attorney and client failed under "some evidence" standard they also fail under the probable cause standard, since the latter requires more showing the subpoena should be quashed and the communication is privileged NO camera review should be done.