Crime-Fraud Exception to the Attorney-Client Privilege In Arizona
In Arizona, the attorney-client privilege is defined by statute. A.R.S. 12-2234 (2003). the statute provides that "in a civil action an attorney shall not, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment." Arizona law, however, has long recognized a "crime-fraud" exception to the privilege.
"The privilege is not extended when there is a prima facie showing that a communication with an attorney was used to perpetuate a crime or fraud." State ex rel. Thomas v. Schneider, 212 Ariz. 292, 297, P 23, 130 P.3d 991, 996 (App. 2006) (citing Buell v. Superior Court, 96 Ariz. 62, 68, 391 P.2d 919, 924 (1964); Pearce v. Stone, 149 Ariz. 567, 573, 720 P.2d 542, 548 (App. 1986)).
There is a privilege protecting communications between attorney and client. the privilege takes flight if the relation is abused. a client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told . . . . to drive the privilege away, there must be 'something to give colour to the charge'; there must be 'prima facie evidence that it has some foundation in fact.' Buell, 96 Ariz. at 68, 391 P.2d at 924 (quoting Clark v. United States, 289 U.S. 1, 15, 53 S. Ct. 465, 77 L. Ed. 993 (1933).
To invoke the crime-fraud exception, therefore, the party seeking the testimony of counsel need not prove actual fraud by clear and convincing evidence.
Rather, the party must only present prima facie evidence "to give colour to the charge" that shows that the charge has "some foundation in fact." Id.
Once default is entered, the prima facie case may be based on any well-pleaded facts because those facts are deemed admitted. See Moran v. Moran, 188 Ariz. 139, 146, 933 P.2d 1207, 1214 (App. 1996) ("An entry of default establishes as proven all well-pleaded facts.").
We review for an abuse of discretion a trial court's determination that there is sufficient evidence to establish a prima facie case. See, e.g., Cavanagh v. Ohio Farmers Ins. Co., 20 Ariz. App. 38, 44, 509 P.2d 1075, 1081 (1973).