family may have please the court we are here today because the state is seeking to use the crime fraud exception to gain access to attorney client privilege communications in the hope that they will cannot rejoice heads to a crime or fraud although this holding although this is contrary to jack or the appellate court sanction this approach and in doing so applied an overly broad application of the crime fraud exception such that the exception now devours the rule as we know the attorney client privilege protects against an authorized disclosures of confidential communications between attorney and client to activate the crime fighting exception and thus breach the privilege the proponent must make a prime a fascist shelling but a prudent person has a reasonable basis to suspect that the defendant is committing or about to commit a crime are fried and that he has communicated with his attorney to further that crime this is  established by this court and doctor and the focus is narrow the defendant must be intending or actually committing a crime and seek advice that leads to the deed in this case  were right that that is the difference in the wording i mean it's interesting to take a look at those two positions because in that very small respect the appellate court in the first district got the wording right there tracking the language of th its opinion and tucker the second district actually got the wording in correct but they actually got the spirit of attacker when they van in order to cameron hearing what the concern is from jacker is that we don't just open the floodgates to disclosure we actually take a look at the communication we don't have any problem with the proposition and words person can be used to support no i think that's fully supported by decker and i think that's a workable tast but here what we have in terms of supporting whether the crime fighting exception applies is it's two separate things we have a mortgage fraud and we have real estate transfers and those real estate transfers were directed the problem in this case is that without connecting rejoice rich to the loan five there is no scheme and said there's two unique events in support of the crime fighting section the state produced the grand jury testimony of two witnesses codefendant krista patterson and a strat buyer biljana ron yes but in examination of that evidence shows that the defendant was not connected to the loan fried in fact every both witnesses specifically testified that other people did the false information the fossilman applications and the false employment verification including an admission by patterson herself that she we did most of that there's also no evidence that there were any communications that led to further criminal activity although codefendant krista patterson testified that rejoices communicated through her to help found only communications that she identified consisted of faxes regarding details about where to be for closings and real estate transfers again we have a crime and we have real estate transfers but there's no evidence that we're doing change was actually seeking advice to further the crime in fact state conceded that they did not have enough evidence to make a prime a fascist showing and the trial court exercised its discretion and agreed that the state had not met its burden that the crime fraud exception applied the power point however legally incorrect it's factually incorrect because of course we know from the grand jury transcribes the defend it was not involved it was other people doing the loan fraud legally the appellate court was incorrect because it found it legal transfers of real estate actually further the loan fraud this is just a substitution of relevancy for in further ends in other words all they were doing which might have been involved in the real estate transfers and that may have been relevant to the mortgage fraud because we did not participate in the mortgage ride those transfers could not further that the appellate court's decision is completely unprecedented this is the only case that lets  work backwards to infer criminality from legal work every other case requires a connection between the defendant and the crime and but the attorney's work actually helps further that crime again because  consider the unique circumstances of this case for example at the hearing on the crime fraud exception and whether that applied it was not the first time that the state conceded its shortcomings in its case  the trial court wisely denied that request and in fact expressed great concern of the timing of that request noting it was not comforting and backed by troubling but this was brought right as defendant demanded trial fast forward several months later when the trial court found  the crime fraud did not apply the trial court's aware of the state's repeated concessions and the stage a rush to find a witness once the defendant demanded trial to question the standard that we're talking about in terms of counts really centered around this this mortgage fraud there was i think financial institution fraud that there was money laundering but everything comes back to the foundational crime of this mortgage fraud so it is it fair to sue there was second circuit found probable cause and crime of passion interchangeable but no other court has in fact every court in illinois even the first district has has mentioned the crime of fashion showing that's required and this court too has really adopted the prime a fascist showing which is more than the probable cause and we know that because it expressly adopted the ruling in zola and which holds that you need a crime of passion showing of course taking that language from from clark and th has said you know in other cases in other contexts that again in the spectrum of burden of proof probable cause is lower than a crime of ashes showing and that's what the state needs to needs to meet here in this case the trial  overcome the attorney client privilege if that were the case privilege would never prevail however the appellate court's decision sets the stage for such an outcome the remedy that the appellate court fashion is also completely unprecedented and said as i mentioned earlier unlike the second district in miller it completely open the floodgates to discovery without any boundaries it simply just ordered the codefendant to testify against her joy change without bothering to determine what the nature of those communications were and or even to parse out the communications that actually fell under the crime five exception and those that still remain privileged every other case including tucker cautions courts to not very careful be reluctant to disclose communications without at the very least and in camera hearing and that in camera hearing must actually relates to the discrete crime or fry in this case the mortgage  fraud published decision not only trampled on the attorney client privilege and this court's careful approach in jacker but it also completely undermined the trial court's ability to monitor the floodgates and to monitor the evidence that was coming in a trial with the correct application of the facts to the narrowly focused test in jacker this court should reverse the appellate court's decision outright in the alternative we would request this court to order an in camera examination of mark health and that's again discreetly related to the crime or fraud either for an ultimate determination of whether the kind of case has been made or at the very very minimum to parse out those communications that different i mean we would look we would argue that mueller is very important in particular with respect to the remedy the remedy there again although you larry got the language in corrected did not directly track the language  it still got the spirit right in other words you know the appellate court in reviewing that they case said you know what we think there might be something going on here but we can't make this determination it's up to the trial court we're going to send it back for at very least in camera hearing and they were very careful to say we're not even going to say whether there was a crime a fascist showing again that's up to the trial court so we cite that decision as an important and logical for the points of affording the trial court narrow and it's limited to the situation where the in the intended conduct which is the subject of the consultation with the attorney is itself illegal that is that the claim the client asked the lawyer for help in committing a crime it does not apply where exhaustion does not apply where as in this case the attorney is asked by the client perform lawful in fact a routine legal work but unbeknown to the attorney the client may be engaged in some criminal scheme which is unwittingly helped by the attorney's work that's the situation here and i would like to make just two points in support of our position first what this court stated and dr about the importance consult freely and openly with an attorney without any fear of compel disclosure of the information communicated this court further stated that a lawyer should be fully informed of all the facts of the matter he is handling in order for the client to obtain full advantage of our legal system in other words for our us adversarial system to function properly the lawyer must be able to say to the client tell me all the necessary facts that i need to complete my task and i will protect your confidences and if the lawyer can't say that i think that part the danger with this expansion of the crime fraud exception is the lawyer really can't say that and the key words are the necessary what are the necessary facts for the lawyer to complete his task for example if you have a real estate lawyer like mr hall found who was asked by his client to represent him in the purchase of a condominium the lawyer needs to know certain facts you need to know the facts necessary to complete the sales contract he doesn't need to know everything about the client's business and he may need to know that the client has obtained a mortgage but he doesn't need to know who is going to pay the mortgage so for example he doesn't need to know if the client is in fact buying the unit for his son who has bad credit and that the son is actually going to be paying the mortgage in the sun is going to be living in the unit but the client is going to sign the lease the mortgage because the the client has better credit in fact in that situation the client is a straw buyer that is not something that the lawyer needs to know and in fact that act of being a straw buyer is not illegal also another situation would be if the client is going to buy the property to grow marijuana now the lawyer would not that would not be the lawyers business to inquire what are you going to do with your condominium that is not a necessary fact for the lawyer to complete his task but under the appellate court's opinion in this case a lawyer would need to know that because the client was planning to grow marijuana then it turned his lawful work in helping the client purchase the condominium could be said to be in further ends of a criminal scheme here mr h know about the buyer's arrangement in the with the loan with the mortgage lender he didn't need to ask mr rideau church whether he has any relationship or any knowledge of whether the buyer made a false statement on a loan application that would be completely irrelevant to what miss for health fans business was and and it's important to point out that mr hoffman was never asked and there you know it the state doesn't contend that mr health that was ever asked to advise anyone with respect to any loan application or in any  dealings with any mortgage lenders which is the basis for the criminal case here and if he had it and our position is it would swallow the rule if the expansion if the exception is expanded to applied this type of situation and the second point i would like to make and the second reason why i believe that this court's opinion in dhaka is limited to the situation where the subject of the consultation with the lawyer itself is a it's crime ask you a lawyer to help of the client commit a crime is because if you look at that this court's opinion the end of the opinion that latter part of the opinion the language there this court says that wants to  initial threshold has been met by the party advocating the crime fraud exception the in camera questioning by the judge should begin with a narrow question such as coal did your client ask your advice on how to commit this specific illegal act knowing it to be unlawful in our case if the state had met its initial threshold and there was an in camera inspection and the judge asked mr hall fand that question just ask for advice on how to commit this pacific legal out of loan fraud or mortgage fraud mr hoffa and almost certainly would say no he never discussed anything about his dealings with mortgage companies  my role was only to do closings conduct persons and and the trust agreements so this was not relevant it was not necessary facts i didn't pry into his business and so i think and i think that prima fascia showing is made then you go to any in camera view now radioactive braces that earlier second district case did not have the benefit of this so one decision and ultimately it turns out to be incorrect now it's also true that in most cases and decker points this out someone before a point that in many many cases the best and often only evidence of a crime or fraud exception is going to itself be potentially privileged and so the in camera view will often be necessary what we have here however it's someone who is directly involved in acting as a go between between an attorney and client telling the grand jury some of this critical information you also have a straw buyer coming forward and telling the grand jury critical information and although we can prevail without agent hoffman's testimony his testimony does corroborate some of that and suggest there have been federal investigations are operating that testimony is nature of the communications are contained in the grand jury transcripts is that correct that's correct in rough outline now there's not specific testimony about what i said in this e mail on this state certainly krista patterson did not produce something like a privilege log and neither is mr check but in general she discussed in the parties appear do agree that health and was involved in the condo conversions which ultimately increase the appraisal value of the properties in the us increas the amount of money that could be gotten the mortgage lenders mr hoffman was involved in the straw sales and closings that's his position some of them he may not have necessarily performed the closing himself there's a little bit of talk about that throughout the record but his position since rick is asserting the privilege as to these communications must be that he was consulted about those closings while i'm finally there at the deeds back which allowed mr ritter to retain the properties and continue renting them out and not using them as condos for the straw buyers and there's some discussion in paterson's testimony about of in camera review that decker and solon talk about the crime fraud is exception hasn't been established whether you use the language of prima fascia showing or probable cause that initial showing hasn't been made instead all that's been made is a lower showing about what in camera review might reveal so we're in the world of more typical discovery devices when you're doing that kind of in camera view so it makes sense that that would be subject to an abuse of discretion standard and yet if extrinsic evidence is used to make the prima fascia showing then the appropriate standard of review would be to know  and that accords with the way that this court is treated statutory privileges overall it accords with the sound development of the law on these privileges and on the whole it accords neatly republicans then it doesn't make much sense to have lots of weighing of for instance two witnesses or three witnesses testimony and having the kind of review that you would ordinarily review for a discretion now that said justice freiman we would prevail on an abuse of discretion standard because when you're really viewing a cold record when you're reviewing cold transcri then if you're going to make an adverse credibility determination or the trial court where ted come out and express they say which by the way didn't that it discredited patterson's testimony iran you know says hopkins then you go on some reasons about that sorenson explains that ordinarily the reason we have deferential review of trial court decision making is that the trial court is in a position to observe the demeanor of witnesses listen to the  catch that certain inscrutable something that happens during live testimony and figure out whether despite what the words are a truth or an untruth is being uttered you didn't have that when the trial court reviewed the grand jury transcripts here and in general you're not going to have that because there's not really a device other than the kind of in camera review that was addressed in solon for getting live testimony so in other words when the when the showing of the crime or fraud exception is made with you're always going to have a cold record or almost always going to have a cold record for the trial court to review and so the trial court isn't in a better position than the appellate court now here there's another consideration i believe so you asked about the grand jury indictments here there would be something odd about saying in picking deferential review for the trial court's decision we're not going to defer to the grand jur wrong turning specifically to the issue of in camera view again it's important to know that so when he actually does countenance this kind of remedy in solon there was a footnote near the end of the opinion that discussed what would happen on remand in the ninth circuit and very briefly in solon at issue were a series of recorded interviews between counsel and the clients and these tapes were fairly lengthy and through various third parties partial excerpts of those tapes had been obtained and transcripts had been made better from and one of the questions on remand according to this court of the united states was whether those little excerpts contained enough that the trial court can presume that actually everything on the tapes went to further the crime or fraud and on remand the ninth circuit decided that that was so the ninth circuit looked at the very limited transcripts that the government had produced and decided that the whole scope of the representation must have been criminal so there was no need for in camera view before hand of the entire of the tapes and here we have a similar situation where krista patterson has testified to her interactions with health and she's discussed them in loose detail but she has talked about how she worked with him to transfer the properties between and to use that on paper which did no and straw buyers and back to other entities that on paper rejoiced which didn't own  in considering all of this it's important again to remember the purpose of the crime or fraud exception and the purpose really of the attorney client privilege itself mccormack greatly cause the privilege the client privilege it's not a privilege for lawyer although lawyers do sometimes assert it and all of us should consider carefully the incentive facts of the ruling my opponent is asking for in particular health and has suggested that if the client doesn't disclose the real nature of his business the reason for his visit then he can obtain a lawyer service says and he should be permitted to use a lawyer to further his conspiracy that is not the law that has never been the law concerning the attorney client privilege there's an example in queen against cox an english case that this court cited and decker not cited in our brief in queen against cox the court uses an important hypothetical court says suppose on the one hand that it would be client a goes to a lawyer b and says forge me a will in the name of c everyone should agree that if the lawyer participates in that that's not acting in a professional capacity and really the proposition from the client shouldn't be protected either even if the lawyer doesn't go along with it because their problems w operation that that doesn't really defeat the crime or fraud exception again if which has not revealed to him what his services are being used for and he manages to obtain credit he doesn't qualify for in that manner that doesn't deserve protection and so in camera view of those kinds of statements by health and aren't going to help them now if instead what health and wants is to offer rebuttal evidence then would beginning to cause if the court preferred to keep using the nomenclature of shelling that's fine but it is low and if what's going to happen is that health and is going to say in camera actually paterson never reached out to me none of these transactions happened these are all lies then there's going to need to be some kind of weighing of paterson's grand jury testimony against health fans in kemah testimony you might consider health plans own prior conviction for fraud in evaluating the weight of that and that looks like a very messy proceeding and that's not ordinarily would be think of within camera view and the final kind of in camera view that's floating out there in the world of civil discovery but not really in the crime fraud line of cases you might have a complex universe of documents in another case but maybe some of those documents clearly go to the criminal schemes and some documents might pertain to other transactions that are entirely legitimate and there might be a need to parse those documents but it's hard to imagine that kind of review being necessary here again everything about the condo conversions at least for the properties listed in the indictment here everything about the strong sales and closings everything about the deeds back and the distribution of proceeds this all goes towards for dietrich's overall scheme of obtaining credit that he can't otherwise obtain and keeping his name out of the trails that he can handle assets and income without having to report it and without having it be subject to these federal tax liens that are  instead even if in some future case in camera view might be appropriate it would not be appropriate in this case i recognize that in theory on the stand when health and is testifying it's possible that it a question could invite him to discuss a transaction that's outside the scope of what we've been discussing here and if that were true perhaps he could assert the privilege with respect to that specific transaction at that time i'm imagining that's not going to happen but brings us to another consideration that you should consider in evaluating the burden of proof the standard review and the way to apply and these facts relevance is always going to be a soft limitation on what the state is going to be able to elicit and some of the more dramatic hypotheticals that have been discussed  here for instance acquiring a property to use for a drug business one of the questions that will arise is what relevance that will have for the drug prosecution if it turns out to be the case that there was already an existing agreement to set up a drug business and someone acquires a property as a substantial step towards setting up that drug business then that's going to meet the standards all the further ins and relevance another soft limitation you have here on even when the crime or fraud exception is a stably is weighing of evidence for probative value and unfair prejudice so in some of the more dramatic hypotheticals it may well be that some of the information about communications obtained in furtherance of the crime or fraud will be sufficiently prejudicial that it will be excluded on that ground and finally of course we have the client's knowledge which is built into the test for the crime or fraud exception if a client is obtaining property is attending a divorce settlement or attending some other money to run an illegal enterprise then you're concerned for that client and that client's need to protect his communications should be at its lowest out and again furtherance is a familiar concept anyway this court doesn't need to do anything new in order to affirm  decision care further ense as a concept has a long history in conspiracy law and accountability in more historical aiding and abetting an accomplice liability law and further ends of a criminal objective has never man would be criminal in and of itself so for instance i can further a bank robbery by driving driving someone to the bank robbery site knowing that i'm doing so and even though i can ordinarily drive my friend around i can't do it for that purpose so again if there are no further questions we are asking the court to affirm the decision of the first district in fall and at the you let's get back to what we're talking about here which is the application of the crime fraud exception we're not talking about soft limitations of whether evidence comes in and under different standards and different areas of review we're talking about whether the crime fr exception breaches the attorney client privilege and this court has set out a very narrow tast one that the state still i thought the fifth time a fourth time maybe the chairman is not to say still has yet any crime or fried and any communications identify any communications that he made with his attorney to further that crime or fried every single activity that the state got appearing reciting was legal activity relating to the real estate transfers and again it's no it's no argument to say that because invoked his rights to a new attorney client privilege that that necessarily means that any communications are relating to properties that also relate to the mortgage fraud i think that's a strategy number one because again there are so many holes in the state's evidence the only thing that they put forward is  the just simply go to directions regarding the closing i mean how is that a communication that furthers a fraud it's it's really not biljana rhino's said that mark health and maybe it was out a couple closings he might not have even done every single closing that she was involved with so for the state for the state to say that that because we're invoking the privilege that means everything is relevant to the mortgage fraud that's completely ridiculous on it and it turns the state's burden on  tad again with respect to the grand jury proceeding there what we're talking about is whether there's an ultimate issue for a trial i mean the grand jury decided that sure there was we can go to trial but it's it's no big surprise that criminal defendants very often beat granger indictments once they go to say a hearing on a motion to quash or rast the state is now subject to a slightly higher evidentiary burden and criminal defendants can get out of that indictment to the trial court's ruling and the trial court's knowledge of what's going on in the case even though the trial court is simply redoing reviewing court documents that doesn't break any sort of discretionary power that the trial  although what but needs to happen is some sort of deference to the trial court's decision but what's important here is when making a determination for whether the crime fraud exception uprise the trial court looks at the tenor of the case and decides knowing everything that it knows coming up to this point whether the state has a good faith basis to seek the crime friday exception and in this case the state does not mean it has conceded multiple times that it's it's looking for that he witnessed to actually connect rejoice  trial court was not persuaded that the state is bringing the same good faith or that the faith has met its burden so that at the very least i mean there has to be at least some acknowledgement of the proceedings that led up to the determination of whether the crime friday exception applies and and i would argue that that's the very least discretionary in the language and jacker and solon which says that the decision to conduct an income review is discretionary for their support so that  if there are no the questions thank you very much again address a couple of points first mr backers argument he suggests that the grand jury transcript clearly clearly shows that mr heller fan was consulted helped and was consulted and tasked with doing lawful routine legal work better as closings transfers into trust which is real but think that real estate lawyers do  crime fraud exception beyond the traditional thing which was were were the lawyers directly consulted for info to commit a crime this is not the case here that that evidence shows that the lawyer w consulted to do routine legal work for a client but mr becker further urges this court to find it in camera review is not appropriate in this case and consulted mr hoffa and for the purpose of committing a crime that in camera inspection would be critical in this case and i think the reason why the state doesn't want it is because the state knows that the answer to the question that this court suggested that the court would ask in dhaka would be knowing that question again is whether you did your client ask your advice on how to commit this specific act of mortgage fraud or loan fraud knowing it to be unlawful and there is simply no evidence in the record to suggest that mr mr murdoch should ever ask mr health and for any advice about loan fraud now mr health and may have known about and the one last thing i would like to address and mr backus comments and that is that he suggested that the client if there's evidence that the client was involved in criminal activity you shouldn't be so concerned about the theater or any client privilege and that's certainly the case here there's evidence there's probable cause to believe mr wood dosage was involved in loan fraud but again i would suggest the attorney client privilege to tax the innocent and the guilty and people that are involved in crime certainly have a right to go and consult with an attorney and have those communications be protected and i think that's an important point and i think that this court to consider it and