August 20, 2018

Colorado Supreme Court: District Court Erred in Stripping Documents of Attorney-Client Privilege Without Satisfying Test

The Colorado Supreme Court issued its opinion in In re 2015–2016 Jefferson County Grand Jury on Monday, February 5, 2018.

Privileged Communications and Confidentiality—Crime–Fraud exception—Wiretapping.

A grand jury investigating M.W. and his company I.I. issued a subpoena duces tecum to I.I.’s attorney ordering her to produce all documents related to her representation of I.I. Along with the subpoena, the People served a notice of hearing to determine whether the documents were protected by the attorney-client privilege. In the notice, the People provided wiretap summaries as an offer of proof that the crime-fraud exception to the attorney-client privilege applied. Reasoning that I.I.’s entire endeavor was illegal, the district court ordered all of the attorney-client communications stripped of privilege without reviewing them in camera.

The Colorado Supreme Court held that a two-step process applies when a party seeks disclosure of attorney-client-privileged documents under the crime-fraud exception. First, before a court may review the privileged documents in camera, it must “require a showing of a factual basis adequate to support a good faith belief by a reasonable person that wrongful conduct sufficient to invoke the crime or fraud exception to the attorney-client privilege has occurred.” Caldwell v. Dist. Court, 644 P.2d 26, 33 (Colo. 1982). Second, the court may strip a communication of privilege only upon a showing of probable cause to believe that (1) the client was committing, or attempting to commit, a crime or fraud, and (2) the communication was made in furtherance of the putative crime or fraud. Because the People failed to make such a showing here, the district court abused its discretion in stripping the documents of privilege. The court also held that, based on the facts of this case, the district court should have required the People to disclose the applications and authorizations for the intercepts that it provided to support the subpoena under C.R.S. § 16-15-102(9) of Colorado’s wiretap statutes.

Summary provided courtesy of Colorado Lawyer.