Attorney Client Privilege and the GM Ignition Switch Cases

One of the most important protections in the law is the privacy and confidentiality afforded to parties and their lawyers in the attorney-client privilege.  However, amid the firestorm of controversy General Motors is facing in the wake of its ignition switch scandal, that protection is being challenged.  Recently, plaintiffs bringing suit against GM are asking the federal district court in New York to remove the shield of the attorney-client privilege because, they claim, the company and its lawyers fraudulently covered up evidence of this known defect, leading to dozens and dozens of deaths and serious injuries nationwide.

The crime/fraud exception to the privilege can allow for the disclosure of otherwise confidential communications and/or work product generated by the company’s attorneys. This could be even more bad news for GM, which allegedly knew as early as 2010 that they could face the potential of punitive damages awards in litigation for this ignition switch defect that would surely cause driver deaths.  Nevertheless, this defect was not disclosed to the National Highway Traffic Safety Administration until 2014.       

The timeliness of this revelation is a primary concern for the plaintiffs in this case.  They are claiming that the crime or fraud in this instance was the concealment of a known deadly defect for four years that should have been reported to government authorities immediately.  The plaintiffs are also alleging that GM’s lawyers aided in this fraud by entering into settlement negotiations in the early cases to keep this information out of the public eye.  Whatever the Court decides on the viability of the plaintiffs’ argument, there is a very real threat that these communications could be released to the general public, something that should make all lawyers and parties in high-stakes litigation think twice before hitting send on that important strategic email.