Attorney-Client Privilege: Identity, Crime Fraud and the Attorney as Whistleblower

The boundaries of attorney-client privilege and work product protection continue to be tested by new regulatory frameworks, investigative tactics, and evolving professional standards. In this updated 2025 program, esteemed practitioners Ian M. Comisky (Fox Rothschild LLP) and Bryan C. Skarlatos (Kostelanetz LLP) examine critical developments impacting privilege in both civil and criminal contexts. The course covers privilege doctrine fundamentals, key limitations, and high-stakes exceptions including the crime-fraud exception, compelled identity disclosure, and cross-border search scenarios. It also explores the growing pressure on attorneys to act as gatekeepers under proposals like the ENABLERS Act and recent ABA guidance on lawyer due diligence, risk assessment, and withdrawal obligations. Through case law analysis and realistic hypotheticals, attendees will gain practical tools for protecting privileged information, complying with ethical rules, and navigating scenarios where the line between advocate and whistleblower becomes increasingly blurred.

Learning Objectives:

1. Describe the legal elements of attorney-client privilege and work product doctrine, and distinguish between their protections
   

2. Apply recent federal case law on the crime-fraud exception, compelled disclosure, and privilege waiver in investigative and enforcement contexts
   

3. Evaluate how privilege applies in scenarios involving third-party agents (e.g., accountants under Kovel), digital communications, and cross-border seizures
   

4. Assess emerging ethical obligations under the ABA Model Rules - including new interpretations of "willful blindness" and client due diligence - in privilege-sensitive matters
   

5. Prepare to advise clients and safeguard sensitive communications in an evolving legal landscape where lawyers may face new AML-like compliance duties and whistleblower dilemmas