Can an attorney who engaged in a conspiracy to procure an illegal abortion for his client assert attorney-client privilege?

This interpretation applying the exception to either party's conduct is consistent with early decisions on which the attorney-client crime/fraud exception is based.¹⁵ For example, in Abbott v. Superior Court¹⁶ an attorney engaged in an elaborate conspiracy to procure an illegal abortion for a client. The attorney claimed the communication evidencing the conspiracy was a privileged communication. The appellate court disagreed. "This evidence, if believed, is sufficient to establish that petitioner was an active member of the conspiracy to violate the law prohibiting abortions and was counseling a fellow member of the conspiracy in an attempt to further its illegal purposes. Under the law as settled in every common law jurisdiction whose courts have considered the question this evidence was not within the attorney-client privilege"¹⁷ The court also noted the attorney could not claim the privilege for his own self-protection. "The privilege, where it exists, is the client's, not the attorney's, and if it results in the protection of the attorney it does so only accidentally as a result of the assertion of the client's right. Here the client's privilege does not exist and the attorney is in no position to assert a privilege on his own behalf."¹⁸