In Re 2015-2016 Jefferson County Grand Jury, Concerning Grand Jury Witness Amy Brimah

Summary

The court made its rule to show cause absolute and held that the crime-fraud exception requires a two-step inquiry: a minimal factual showing before in camera review, followed by probable cause that the client was committing or attempting a crime or fraud and that the particular communication furthered it. Because the district court categorically stripped all subpoenaed attorney-client materials of privilege without applying that standard communication by communication, the court reversed and remanded. The court also held that the wiretap-disclosure statute applied because the privilege hearing was ancillary to, but distinct from, the grand jury proceeding. Justice Boatright, joined by Justice Coats, concurred in part and dissented from the wiretap-disclosure holding, reasoning that the hearing was part of the grand jury proceeding and that disclosure should instead be balanced against grand jury secrecy.