medium · LSAT Reading Comprehension

The attorney-client privilege is a fundamental principle of the legal system, ensuring that clients can communicate openly with their lawyers without fear that those communications will be disclosed. This privilege is intended to foster the effective administration of justice by allowing lawyers to provide fully informed advice. Without it, proponents argue, clients might withhold damaging information, leading to poor legal strategy and potentially causing clients to inadvertently violate the law. The privilege is nearly absolute, applying to all communications made in confidence for the purpose of seeking legal advice. However, the privilege is subject to a critical exception: the crime-fraud exception. Under this rule, the privilege does not apply if a client consults an attorney for the purpose of planning or committing a crime or a fraud. Courts have struggled with the standard of proof required to trigger this exception. If the standard is too low, the privilege could be easily circumvented, chilling the very communication it was designed to protect. If it is too high, the legal profession could be used as a shield for ongoing criminal activity. Current jurisprudence generally requires a 'prima facie' showing that the client was engaged in or planning a criminal act and used the legal consultation to further that plan. This balance seeks to protect the integrity of the attorney-client relationship while preventing its abuse.

The author mentions that 'the legal profession could be used as a shield for ongoing criminal activity' primarily in order to do which of the following?

  1. Identify the danger that arises when the proof threshold for the crime-fraud exception is set too demandingly.
  2. Argue that the attorney-client privilege ought to be abolished because criminals so often exploit it.
  3. Show that attorneys are typically ignorant of their clients' unlawful intentions.
  4. Establish that the prima facie standard is the single most effective tool for deterring fraud.
  5. Describe the chilling effect that results when the proof threshold for the exception is set too low.

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