## Facts

- Jeffrey W. Purcell, an attorney with a legal services organization, consulted with Joseph Tyree about a court-ordered eviction from Tyree’s apartment.
- After the consultation and deliberation, Purcell informed a Boston police lieutenant that Tyree had threatened to burn the apartment building.
- The next day, during efforts to carry out the eviction, officials found gasoline and other incendiary materials, observed disconnected smoke detectors, and discovered gasoline poured in a hallway.
- Tyree was arrested and indicted for attempted arson of a building.
- The Commonwealth subpoenaed Purcell to testify about his conversation with Tyree; a judge initially quashed the subpoena on privilege grounds, and Tyree’s first trial ended in a mistrial.
- Before retrial, the Commonwealth again sought Purcell’s testimony; a different judge ruled the communications were not privileged and denied Purcell’s motion to quash.
- Purcell sought extraordinary relief under the Supreme Judicial Court’s superintendence power; the parties stipulated to the facts, and the matter was reported to the full court.

## Issues

1. Whether Massachusetts recognizes a crime-fraud exception to the attorney-client privilege permitting compelled testimony about client communications.
2. If so, what burden and standard of proof apply, and what procedure (including in camera review) governs determining whether the exception applies.
3. Whether the record supported applying the crime-fraud exception to Tyree’s communications with Purcell.

## Decision

- The court recognized a general crime-fraud exception to the attorney-client privilege in Massachusetts.
- The party opposing the privilege bears the burden to prove the exception applies by a preponderance of the evidence.
- A judge may, in the judge’s discretion, conduct in camera review of the communications upon a sufficient factual showing supporting a reasonable belief that the review may establish the exception applies.
- The record provided an insufficient factual basis to conclude Tyree consulted Purcell to obtain advice in furtherance of attempted arson; the order compelling testimony could not be sustained on crime-fraud grounds.
- The matter was vacated to the extent it relied on the crime-fraud exception and remanded for further proceedings to determine whether the communication was otherwise privileged, potentially using in camera review.

## Legal Principles

- Attorney-client privilege does not protect communications made for the purpose of obtaining legal assistance to commit or plan a crime or fraud, and communications must be in furtherance of that objective to fall within the exception.
- The opponent of the privilege must establish the crime-fraud exception by a preponderance of the evidence.
- In camera review is discretionary and requires a factual basis adequate to support a reasonable belief that the review may establish applicability of the crime-fraud exception.
- Post-consultation criminal conduct, without proof that the client’s purpose in consulting counsel was to further the crime, is insufficient to pierce the privilege under the crime-fraud exception.
- The privilege analysis is distinct from questions about the ethical propriety of counsel’s separate disclosure to law enforcement regarding potential harm.

## Conclusion

The court formally adopted a crime-fraud exception to attorney-client privilege, assigned the burden of proving the exception to the opponent by a preponderance of the evidence, and required an adequate factual predicate before in camera review or compelled testimony; on the stipulated record, the exception was not shown, and the case was remanded to determine whether the communications remained privileged.


Purcell v. Dist. Attorney for the Suffolk Dist., 424 Mass. 109, 676 N.E.2d 436 (1997)