The attorney's testimony was properly admitted. In State ex rel N. Pacific Lbr. v. Unis, 282 Or. 457, 579 P.2d 1291 (1978), the Supreme Court quoted from the provision of the Uniform Rules of Evidence pertaining to the future crimes exception: " 'There is no privilege under this rule:

The party seeking to invoke the crime-fraud exception to the attorney-client privilege must affirmatively show "that the client, when consulting the attorney, knew or should have known that the intended conduct was unlawful." State ex rel. N. Pacific Lbr. v. Unis, 282 Or. 457, 464, 579 P.2d 1291 (1978). The exception relevant to the motion now before this court is:

Good-faith consultations with attorneys by clients who are uncertain about the legal implications of a proposed course of action are entitled to the protection of the privilege, even if that action should later be held improper.State ex rel. North Pacific Lumber Co. v. Unis, 282 Or. 457, 579 P.2d 1291, 1295 (1978). Accord, Sound Video Unlimited, Inc. v. Video Shack, Inc., 661 F. Supp. 1482, 1487 (N.D.Ill. 1987) (client "either knew or recklessly disregarded that his . . . activities were illegal"); Caldwell v. Dist. Ct., 644 P.2d 26, 33 (Colo.

The courts and commentators are generally agreed that the proponent of the crime of fraud exception must make a showing of the applicability of the exception before the privilege recedes. E.g., United States v. Hodge and Zweig, 548 F.2d 1347, 1354 (9th Cir. 1977); Union Camp Corp. v. Lewis, 385 F.2d 143 (4th Cir. 1967); Duplan Corp. v. Deering Milliken, Inc., 397 F. Supp. 1146, 1172, 1194 (D.S.C. 1974); United Services Automobile Assn. v. Werley, 526 P.2d 28 (1974); State ex rel. North Pacific Lumber Co. v. Unis, 282 Or. 457, 579 P.2d 1291 (1978); Note, The Future Crime or Tort Exception to Communications Privileges, 77 Harv. L. Rev. 730 (1964) (Note, The Future Crime or Tort Exception); Gardner, The Crime or Fraud Exception, supra. We recognize that there is some apparent division in authority over whether this showing must amount to a prima facie case or whether some lesser quantum of proof is adequate.

The state nonetheless urges that defendant's statements to Colby do not fall within the scope of the attorney-client privilege because, even if they satisfy the plain language of OEC 503(2)(a), threats of violence were not protected communications at common law. That argument is unpersuasive. In State ex rel N. Pacific Lbr. v. Unis, 282 Or. 457, 579 P.2d 1291 (1978), the Supreme Court construed the predecessor to OEC 503, ORS 44.040(1)(b) (1975), repealed by Or. Laws 1981, ch 892, section 98. That statute did not explicitly provide for any exceptions to the attorney-client privilege. The court acknowledged that, "when the Oregon privilege statute was enacted [in 1862,] there was a recognized exception to the common-law privilege covering attorney-client communications when the communication was made in furtherance of an intended crime."

Good-faith consultations with attorneys by clients who are uncertain about the legal implications of a proposed course of action are entitled to" the privilege. State ex rel. N. Pac. Lumber Co. v. Unis, 282 Or. 457, 464 (1978); see also Frease v. Glazer, 330 Or. 364, 373-74 (2000) (en banc) (evaluating party's "intent when he retained [counsel] to represent him"). To obtain in camera review of allegedly privileged materials for purposes of evaluating the crime-fraud exception's applicability, a party "'must present evidence sufficient to support a reasonable belief that in camera review may yield evidence that establishes the exception's applicability.'"

Petitioner therefore contends that mandamus relief is appropriate because the post-conviction court's order denying his motion for a protective order failed to protect the disclosure of privileged information beyond the limited purposes of a breach-of-duty exception to the lawyer-client privilege. See State ex rel. N. Pacific Lbr. v. Unis, 282 Or. 457, 579 P.2d 1291 (1978) (mandamus relief appropriate where discovery order erroneously required disclosure of privilege communications). Petitioner argues that, without a protective order, the disclosure of his confidential communications relating to the underlying capital murder charges beyond the confines of the post-conviction proceeding could result in lasting harm to petitioner in future proceedings.

Even if we assume the truth of that allegation, that would not bring the communications within the bad faith exception. See Olson v. Accessory Controls Equipment Corp., supra, 254 Conn. 171 (recognizing "societal interest in enabling clients to obtain complete and accurate legal advice" [internal quotation marks omitted]); id., 175, quoting State ex rel. North Pacific Lumber Co. v. Unis, 282 Or. 457, 464, 579 P.2d 1291 (1978) ("[g]ood-faith consultations with attorneys by clients who are uncertain about the legal implications of a proposed course of action are entitled to the protection of the privilege, even if that action should later be held improper" [internal quotation marks omitted]). Although the defendant's refusal to follow its attorneys' advice might be relevant for purposes of establishing its state of mind in handling the plaintiffs' claim, we have concluded that the relevance of privileged communications, in and of itself, does not justify abrogating the attorney-client privilege.

"Good-faith consultations with attorneys by clients who are uncertain about the legal implications of a proposed course of action are entitled to the protection of the privilege, even if that action should later be held improper." State ex rel. North Pacific Lumber Co. v. Unis, 282 Or. 457, 464, 579 P.2d 1291 (1978). Even if probable cause exists to believe that the client intended to perpetrate a fraud, the exception is curtailed by the second requirement that the communications sought in discovery were made in furtherance of the fraud.

OEC 503(4)(a). A party seeking to invoke the crime-fraud exception to the attorney-client privilege "must show that the client, when consulting the attorney, knew or should have known that the intended conduct was unlawful." State ex rel N. Pacific Lbr. v. Unis, 282 Or. 457, 464, 579 P.2d 1291 (1978). 6.