Is he doing it again? During the past year, independent counsel Kenneth Starr has successfully whittled away at the foundation the attomey-client privilege in an attempt to quench his insatiable thirst for confidential communications that might somehow incriminate President Bill Clinton. He has persuaded the U.S. Court of Appeals for the 8th Circuit to hold that a government agency cannot assert the attomey-client privilege against discovery requests from a federal grand jury. In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (1997). The D.C. Circuit has been convinced that an individual's attorney-client privilege should no longer be absolute. Instead, it can be overridden after the individual's death when a sufficient need is demonstrated for otherwise unavailable information. In re Sealed Case, 124 F.3d 230 (1997).

Now Starr is pursuing the notes of Francis Carter, the attorney who first represented Monica Lewinsky. Is this more of the same? No, there is judicial precedent supporting Starr's latest attempt to breach the confidentiality of the attorney-client relationship. The independent counsel is making two claims. First, he alleges that Lewinsky has waived the privilege by disclosing to Linda Tripp, her then confidante, the content of confidential communications with Carter. Second, Starr alleges that the long-established crime/fraud exception to the privilege obliterates its protection for Lewinsky. Under this exception, the client loses the privilege for any communications with legal counsel that are designed to facilitate the commission of a crime or fraud.

Lewinsky's own statements in tape-recorded conversations with Tripp form the factual basis for both claims. While it isunlikely that the first will succeed, the second has some merit.

The concept of waiving the attomey-client privilege is wrapped in considerations of confidentiality and fairness. If a client voluntarily discloses attomey-client communications to anyone outside the attorney-client relationship, thereby destroying their confidentiality, the privilege that protects them is waived. However, the scope of this waiver can be difficult to determine.

If Lewinsky told Tripp that she, Lewinsky, had related to her attorney, Carter, the things that she and the president had said and done on several of her visits to the Oval Office, would this waive the attorney-client privilege for everything she told Carter about what transpired on those particular visits? Would it waive the privilege for all her conversations with Carter on the subject of her visits with the president over the duration of their allegedly nefarious relationship? The answer to both questions is probably not.

While the law says that voluntary disclosure waives the privilege for the subject matter of the disclosed communication, courts have construed the term "subject matter" very differently, depending on what fairness dictates in the particular circumstances of each case. Since Lewinsky's disclosure was outside the context of litigationshe was not making the disclosure to someone she knew was an adversary-and since the recipient, Tripp, was not disadvantaged by receiving only a partial disclosure of what had transpired, most judges would limit the subject matter of the waiver to the information that was actually disclosed.

This limitation on waiver became judicially popular when, after the acquittal of Claus von Bulow for the attempted murder of his wife, defense attorney Alan Dershowitz published his own account, Reversal of Fortune, in which numerous conversations between Dershowitz and his client were revealed. When the wife's children later brought a civil action against von Bulow they sought discovery of all communications between von Bulow and Dershowitz on the subject of their mother's medical condition.

Because the partial disclosures through Dershowitz occurred outside a litigation context and thus did not implicate all the tactical advantages and disadvantages with which the court otherwise would be concerned, the 2nd Circuit held that the scope of the waiver was limited to the statements in the book. Von Bulow v. von Bulow, 811 F.2d 136 (2d Cir. 1987). This decision has been widely followed in both state and federal courts and will likely compel the same result in the case of Lewinsky's disclosures to Tripp.

The attomey-client privilege is predicated on the assumption that the privilege's protection will lead to greater compliance with the law. Clients will be more candid with their attorneys because they cannot be harmed by their own words in these discussions. With more accurate information, attorneys can give more informed legal advice, which, in turn, will permit the clients to better conform their conduct to the requirements of the law.

The crime/fraud exception recognizes, however, that the privilege cannot serve its purpose when the client consults the attorney with the goal of violating the law, and wants to use the attorney's advice to commit the crime with less chance of apprehension. Therefore, when such fraudulent purpose is demonstrated, all communications between attorney and client that serve this purpose are discoverable.

If Lewinsky went to Carter for the purpose of seeking his assistance in filing a false affidavit or in structuring her testimony to hide the truth when she was required to testify, the privilege would not protect any of her communications with Carter that were in furtherance of that illegal purpose. And this would be true even if Carter was not aware of Lewinsky's bad intentions. The privilege belongs exclusively to the client Therefore, the crime/fraud exception focuses exclusively on her intentions.

To wield this exception successfully, Starr will have to offer prima facie evidence that perjury was Lewinsky's purpose in consulting Carter. This standard may be satisfied by Lewinsky's personal admissions on the Tripp recordings that she had been involved in a sexual relationship with President Clinton going to lie about it in the Paula Jones case.

While Lewinsky's claims about her exploits with the president may themselves be untrue, thus making her professed intention perjuring herself immaterial, this possibility will not be considered by the judge in weighing Starr's evidence. The prim determination is made without regard to questions of credibi If sufficient evidence is presented upon which a reasonable could find a criminal or fraudulent intent, the burden is satisfied.

At the very minimum, Lewinsky's admissions to Tripp should prompt the judge to conduct an in camera examination of C notes in order to determine whether they confirm her stated intentions on the tapes. United States v. Zolin, 491 U.S. 554 (1989).

If the judge is then convinced that Lewinsky used C fraudulent purposes, even this will not necessarily render dis able everything Lewinsky said to Carter. Pursuant to the find a fraudulent purpose, the judge can order the disclosure o those statements that were in furtherance of the fraudulent pu In this case, because of the breadth of the purpose-giving testimony about an entire relationship---the disclosure order be quite broad.

It is also worth noting that if an intention to lie is found, could be serious implications for the confidential communications between Lewinsky and her current attorney, William Ginsburg. Starr is successful in reaching Carter's notes, no one should surprised when Ginsburg is served with his subpoena.
Paul R. Rice is a professor of law at American Unive Washington College of Law and the author of two treatises attorney-client privilege, Attorney-Client Privilege in the U States (Lawyers Cooperative 1993) and Attomey-Client Priv State Law (Rice Publishing 1998).