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2. The testimony of the attorney is
The defendant is on trial for the crime of obstructing justice by concealing records subpoenaed May 1, in a government investigation. The government calls an attorney to testify that on May 3, the defendant asked him how to comply with the regulations regarding the transfer of records to a safe-deposit box in Mexico.
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The attorney-client privilege is a common-law privilege, although in some jurisdictions it has been codified by statute. Essentially, communications between an attorney and client, made during professional consultation, are privileged from disclosure. A client has a privilege to refuse to disclose and to prevent others from disclosing, confidential communications between herself (or her representative) and her attorney (or her attorney's representative). There is no privilege if the services of the attorney were sought or obtained as an aid in the planning or actual commission of something that the client knew, or should have known, was a crime or fraud.
D is correct. The attorney-client privilege covers confidential communications made during a legal consultation between an attorney and client. However, if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud, the privilege does not apply. There is no requirement that the attorney must be aware of the illegal purposes. Because the defendant sought the lawyer's advice to aid in the plan to commit the crime of obstructing justice, there is no valid assertion of the attorney-client privilege.
A is incorrect. The location of the illegal conduct is irrelevant for the determination of whether the attorney-client privilege applies. The fact that the defendant was seeking to transfer records to a safe-deposit box that was located in Mexico has no effect on whether the privilege may be asserted.
B is incorrect. It is true that an attorney is required to keep the confidences of his clients. However, the attorney-client privilege does not apply when a client is seeking the attorney's legal services for purposes of illegal activity.
C is incorrect. This answer reaches the correct answer with the wrong reasoning. The attorney-client privilege may be inapplicable regardless of whether the attorney was aware of the client's illegal purpose behind seeking his advice. The attorney's ignorance of his client's purpose here is therefore irrelevant.