Gelvin v. Hon parker/gelvin

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

CRISTINA GELVIN, Petitioner,

v.

THE HONORABLE AMANDA PARKER, Judge of the SUPERIOR
COURT OF THE STATE OF ARIZONA, in and for the County of
MARICOPA, Respondent Judge,

KERR GELVIN, Real Party in Interest.

No. 1 CA-SA 24-0252
FILED 04-01-2025

Petition for Special Action from the Superior Court in Maricopa County
No. FN2023-002515
The Honorable Amanda M. Parker, Judge

JURISDICTION ACCEPTED; RELIEF GRANTED

COUNSEL

Jeffrey G. Pollitt P.C., Phoenix
By Jeffrey G. Pollitt
Co-Counsel for Petitioner

Rai Duer, P.C.
By Peter B. Swann
Co-Counsel for Petitioner
 GELVIN v. HON PARKER/GELVIN
Decision of the Court

Woodnick Law, PLLC, Phoenix
By Markus Risinger
Counsel for Real Party in Interest

MEMORANDUM DECISION

Judge Daniel J. Kiley delivered the decision of the Court, in which Presiding
Judge Brian Y. Furuya and Judge Angela K. Paton joined. Judge Daniel J.
Kiley delivered a special concurrence, which Presiding Judge Brian Y.
Furuya joined.

K I L E Y, Judge:

¶1 This special action arises out of proceedings to dissolve the
marriage of Cristina Gelvin (“Cristina”) and Kerr Gelvin (“Kerr”).1 Cristina
seeks relief from the superior court’s order compelling disclosure of certain
communications involving her counsel and her mother.

¶2 Because the disputed communications involving Cristina’s
counsel and her mother are protected by the attorney-client privilege under
principles established in Accomazzo v. Kemp ex rel. Cnty. of Maricopa, 234
Ariz. 169 (App. 2014), we accept special action jurisdiction and grant relief.

FACTUAL AND PROCEDURAL HISTORY

¶3 Cristina and Kerr were married in 1999. Throughout their
marriage they enjoyed a comfortable lifestyle that was funded, at least in
part, by disbursements from certain trusts established by Cristina’s parents.

¶4 In June 2023, Cristina filed a petition for dissolution. She also
signed a form entitled “Consent to Communicate Without Waiver of
Confidentiality” (the “Authorization”) which provides in part that Cristina
“consent[s] to and authorize[s]” her counsel “to communicate in any
manner” with her mother, Ursula Gebert (“Gebert”), “about any and all
issues regarding [Cristina’s] divorce action,” and to “release to [Gebert] any
information and any documents and records of any nature related to the
divorce action.” The Authorization goes on to provide:

1 For clarity, we refer to parties who share a last name by their first names.

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In accordance with my attorney’s advice regarding the
holding in [Accomazzo], it is my intention to maintain the
confidentiality of all communications and all information
shared with [Gebert] and to retain the attorney client privilege
relative to same.

¶5 The Authorization includes an “acknowledgement” signed
by Gebert stating:

In accordance with the foregoing and consistent with the
holding in [Accomazzo], I understand and acknowledge that
any information I receive from [Cristina’s counsel], including
without limitation, all written and oral communications,
documents and records of any nature related to the divorce
action of [Cristina] are being shared with me with the
expectation that all such communications and information
will remain privileged, confidential and will not be shared
with any other individuals.

¶6 Kerr served discovery requests relating to Cristina’s interests
in the trusts established by her parents, asserting that such information was
relevant to establishing Cristina’s financial condition for purposes of
spousal maintenance and attorney fees. Kerr first served a request for
production of documents (“RFP”) for “[d]ocumentation evidencing any
income, principal disbursement, or receipt of funds or property of any type
that [Cristina] received as a beneficiary of any trust since January 2017.”
Kerr then served a second RFP seeking “[c]opies of any and all written
communications” between Cristina’s divorce attorney and her parents’
estate planning counsel, “[c]opies of any and all written communications”
between Cristina’s divorce attorneys and her parents, and “[c]opies of any
and all time entries for . . . communications between” Cristina’s counsel and
her parents’ counsel. Finally, Kerr served a third RFP for documentation
seeking information on the source of income for Cristina’s many living
expenses. Cristina objected to these RFPs.

¶7 In September 2024, Kerr filed a motion to compel. After
briefing and argument, the court issued a written ruling in November 2024,
denying Kerr’s request to compel disclosure of written communications
between Cristina’s counsel and her parents’ counsel, and billing records
reflecting such communications. The court also held that communications
between Cristina and her attorney to which Gebert was privy were
protected by the attorney-client privilege and principles established in
Accomazzo.

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Decision of the Court

¶8 The court ordered the disclosure, however, of “independent
communications” between Cristina’s counsel and Gebert “that were not
designed to either merely inform [Gebert] about the divorce proceedings or
to memorialize the mental impressions of [Cristina’s] counsel.” Cristina
then filed this petition for special action to challenge this portion of the
court’s November 2024 ruling.

SPECIAL ACTION JURISDICTION

¶9 Special action jurisdiction is appropriate when a party has no
equally plain, speedy and adequate remedy by appeal. See Ariz. R.P. Spec.
Act. 12(a).2 Because an appeal is not an adequate remedy from an order
compelling the disclosure of “potentially privileged information,”
Grubaugh v. Blomo ex rel. Cnty. of Maricopa, 238 Ariz. 264, 266, ¶ 4 (App. 2015)
(citations omitted), “a special action is the proper means to seek relief when
a party believes a trial court has ordered discovery of material protected by
a privilege or work product shield.” Salvation Army v. Bryson, 229 Ariz. 204,
205, ¶ 1 (App. 2012) (cleaned up); see McGlothlin v. Astrowsky, 255 Ariz. 449,
455, ¶ 12 (App. 2023) (noting that “this Court has . . . often exercised special
action jurisdiction when the superior court orders documents produced
after overruling a privilege objection” (citation omitted)). Accordingly, we
accept special action jurisdiction.

DISCUSSION

¶10 Cristina asserts that the superior court abused its discretion
by ordering disclosure of “independent communications” between her
counsel and her mother, asserting that the court’s ruling was inconsistent
with Accomazzo. She allowed her mother to engage in communications with
her attorney “with an express, written commitment to confidentiality,”
Cristina maintains, and “the plain language of Accomazzo” brings those
communications within the scope of the attorney-client privilege. In
response, Kerr contends that the court correctly compelled the disclosure of
the disputed communications because, he contends, “Accomazzo does not

2 The Arizona Supreme Court revised the Arizona Rules of Procedure for

Special Actions, effective January 1, 2025. These new rules apply in all
special actions pending on that date, including this one, unless doing so
would be infeasible or cause injustice. See Ariz. R.P. Spec. Act. 1 Application
Note. As applying the new rules in this case would not be infeasible or
cause injustice, we apply them here.

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Decision of the Court

protect” a lawyer’s “communications with a third party where the client [is]
not present.”

¶11 The attorney-client privilege prevents an attorney from
disclosing, without his client’s consent, information provided by the client
and the advice given on the basis of that information in the course of the
professional relationship. A.R.S. §§ 12-2234(A), 13-4062(2). “Whether the
attorney-client privilege exists is a question of law” that is reviewed de
novo. State ex rel. Adel v. Adleman, 252 Ariz. 356, 360, ¶ 10 (2022) (citation
omitted). “Whether a party has waived the attorney-client privilege is a
mixed question of law and fact” that is also subject to de novo review. Id.
(cleaned up).

¶12 To establish that a particular communication is protected by
the attorney-client privilege, the party asserting the privilege must show

1) there is an attorney-client relationship, 2) the
communication was made to secure or provide legal advice,
3) the communication was made in confidence, and 4) the
communication was treated as confidential.

McGlothlin, 255 Ariz. at 457, ¶ 22 (quotation omitted). Because the privilege
applies only to communications made “in confidence,” id., “the presence of
a third person will usually defeat” a claim of privilege, State v. Sucharew, 205 Ariz. 16, 22, ¶ 11 (App. 2003) (cleaned up). “This general rule does not
apply, however, where the third party’s presence does not indicate a lack
of intent to keep the communication confidential.” Id. To determine
whether a particular communication is privileged, the court must consider
whether, at the time the communication was made, “the client reasonably
understood the communication to be confidential.” Clements v. Bernini, 249
Ariz. 434, 440, ¶ 11 (2020) (cleaned up).

¶13 In Accomazzo, the wife challenged the enforceability of the
prenuptial agreement she signed that governed the division of property in
the event of divorce. 234 Ariz. at 171, ¶ 2. The wife had discussed the
prenuptial agreement with her lawyer, Michael Cohen, and her parents. Id.
at 171, 173, ¶¶ 6, 13. When the husband sought to depose Cohen, the wife
objected, asserting that the attorney-client privilege applied both to her
meetings with Cohen that her parents attended and to communications that
occurred directly between Cohen and her parents, who were acting “as
[her] representatives.” Id. After the superior court found that the wife had
waived the privilege by allowing her parents to participate in

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communications with Cohen, the wife sought relief by special action. Id. at
171, ¶ 6. Granting relief, this court held that,

[a]bsent a contrary showing, we presume that when a client
authorizes a parent to participate in conferences with her
attorney regarding the client’s personal matter, and the client
and the parent have no adverse interest with respect to the
matter, the client has a reasonable expectation that the
conferences will be confidential.

Id. at 173, ¶ 15 (footnote omitted). Because the husband “presented no
evidence to rebut the presumption that [the wife] reasonably believed that
communications with Cohen remained confidential despite her parents’
participation,” and in the absence of evidence that the privilege was waived
through voluntary disclosure, this court vacated the superior court’s order
compelling the disclosure of those communications. Id. at 174, ¶¶ 16, 19.

¶14 Accomazzo is on point here. The Authorization that Cristina
and her mother signed reflects their agreement to maintain the
confidentiality of their communications with Cristina’s counsel. There is no
indication that either Cristina or her mother ever disclosed the contents of
these communications, either intentionally or carelessly, with other
individuals. Cf. State v. Moody, 208 Ariz. 424, 448, ¶ 79 (2004) (citing cases;
“[O]ur case law on evidentiary privilege . . . suggest[s] that one who knows
his conversation may be overheard and makes no effort to safeguard
against interception may waive a claim of confidentiality.”). The court
made no finding that Cristina and Gebert have adverse interests, nor would
anything in the record before us support such a finding. 3 Although Kerr
asserts that Accomazzo does not apply to communications between
Cristina’s lawyer and her mother that occur outside of Cristina’s presence,
this assertion is contrary to Accomazzo’s holding that the privilege applied
not only to conferences between the wife and her lawyer that her parents
attended, but also to communications directly between the wife’s lawyer
and her parents. See 234 Ariz. at 173–74, ¶¶ 13–16. Under Accomazzo,
therefore, communications between Cristina’s lawyer and her mother are

3 Although Kerr asserts that the “legal interests” of Cristina and Gebert

“diverge[]” because Gebert and her husband have “filed suit against [him],
alleging he misappropriated financial assets from them without
authorization during the marriage,” the fact that Kerr is an adverse party to
Cristina in one case and Gebert in another does not establish that Cristina
and Gebert have interests adverse to each other.

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“presume[d]” to be within the scope of the attorney-client privilege. See 234
Ariz. at 173, ¶ 15.

¶15 Because nothing in the record suggests that Kerr met his
burden of overcoming the presumption that Cristina reasonably
understood that communications between her lawyer and her mother were
privileged, we hold that Cristina did not waive the attorney-client privilege
by authorizing communications between her mother and her lawyer in
accordance with Accomazzo. Accordingly, we vacate the order requiring the
disclosure of those communications.

¶16 Cristina raises the alternative argument that the superior
court erred in compelling disclosure of her mother’s communications with
her lawyer because she and her mother share a “common interest” in the
“substantial trust assets that are in play in [Cristina’s] divorce,” and
therefore the communications between Cristina’s counsel and Gebert are
protected by the “common interest” doctrine.4 Because we hold that
Cristina did not waive the attorney-client privilege with respect to
communications between her counsel and Gebert in view of her reasonable
reliance on Accomazzo, we need not address Cristina’s alternative argument.

CONCLUSION

¶17 Because Cristina did not waive the attorney-client privilege
by authorizing her attorney to communicate with her mother about her
ongoing divorce proceedings in reliance on Accomazzo, we vacate the
court’s November 2024 order compelling the disclosure of communications
between Cristina’s attorney and Gebert “that were not designed to either
merely inform [Gebert] about the divorce proceedings or to memorialize
the mental impressions of [Cristina’s] counsel.”

K I L E Y, Judge, joined by Presiding Judge Furuya, specially concurring:

4 The common interest doctrine protects communications between “two or

more clients” who are “represented by separate lawyers” if they share “a
common interest in a litigated or nonlitigated matter” and “agree to
exchange information concerning the matter” on a confidential basis. Ariz.
Indep. Redistricting Comm’n v. Fields, 206 Ariz. 130, 141–42, ¶ 36 (App. 2003)
(quoting Restatement (Third) of The Law Governing Lawyers § 76(1)
(2000)).

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Kiley, J. Special Concurrence
¶18 We agree that, under principles established in Accomazzo v.
Kemp ex rel. Cnty. of Maricopa, 234 Ariz. 169 (App. 2014), Cristina Gelvin
(“Cristina”) did not waive the attorney-client privilege by authorizing her
lawyer to share confidential information with her mother. And we have no
cause to revisit Accomazzo, since no party has asked us to. We therefore
agree that Cristina is entitled to the relief she requests. We write separately,
however, to note our doubts that the holding of Accomazzo can be squared
with well-established principles governing the attorney-client privilege. In
an appropriate case, therefore, a second look at Accomazzo may be
warranted.

¶19 The attorney-client privilege applies only to communications
made “in confidence,” McGlothlin v. Astrowsky, 255 Ariz. 449, 457, ¶ 22
(App. 2023) (citation omitted), and so generally does not apply if a third
party is present when communications are being exchanged. See, e.g., State
v. Sucharew, 205 Ariz. 16, 22, ¶ 11 (App. 2003) (“[T]he presence of a third
person will usually defeat the privilege on the ground that confidentiality
could not be intended with respect to communications that the speaker
knowingly allowed to be overheard by others foreign to the confidential
relationship.” (quotation omitted)). The privilege’s scope is not, however,
limited to private communications directly between the attorney and the
client. On the contrary, as courts have long recognized, “the complexities of
modern existence prevent attorneys from effectively handling clients’
affairs without the help of others.” United States v. Kovel, 296 F.2d 918, 921
(2d Cir. 1961). For that reason, the attorney-client privilege necessarily
extends to communications with third parties who are members of an
attorney’s staff and others “who act as the attorney’s agents.” Id. (footnote
omitted) (citations omitted); see A.R.S. § 12-2234(A) (“In a civil action . . .
[a]n attorney’s paralegal, assistant, secretary, stenographer or clerk shall
not, without the consent of his employer, be examined concerning any fact
the knowledge of which was acquired in such capacity.”). Communications
involving agents of the client, too, may fall within the scope of the privilege.
A.R.S. § 12-2234(B).

¶20 Even in the absence of an agency relationship, courts have
held that the presence of a third party at an attorney-client conference will
not vitiate the privilege if the attorney and the client could not communicate
effectively without the third party’s participation. This principle is
recognized, for example, when a language barrier between the attorney and
the client necessitates the services of an interpreter. See, e.g., People v. Osorio,
549 N.E.2d 1183, 1186 (N.Y. 1989) (citations omitted). Similarly, a third
party’s participation in attorney-client conferences will not destroy the
privilege if the attorney and client need the third party’s help to

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Kiley, J. Special Concurrence
communicate specialized or technical information in a comprehensible
manner. In Kovel, for example, a client who was under investigation for
suspected income tax violations consulted an attorney, who, in turn,
directed the client to share information with an accountant retained by the
law firm. 296 F.2d at 919. When subpoenaed to testify before a grand jury,
the accountant asserted that his communications with the client were
protected by the attorney-client privilege. Id. On appeal, the Second Circuit
Court of Appeals agreed, holding that the accountant’s role was
tantamount to that of an interpreter. Id. at 921. Reasoning that “[a]ccounting
concepts are [often] a foreign language” to lawyers, the court held that “if
the lawyer has directed the client . . . to tell his story . . . to an accountant . . .
who is then to interpret it so that the lawyer may better give legal advice,
communications by the client reasonably related to that purpose ought fall
within the privilege.” Id. at 922; see Nat’l Steel Prods. Co. v. Superior Ct., 210
Cal. Rptr. 535, 538 (Cal. Ct. App. 1985) (holding, in litigation based on
allegedly negligent construction of a building, that client’s communications
to “engineering expert” retained by lawyer “to provide a technical
analysis” were protected by attorney-client privilege (citation omitted));
Utah Dep’t of Transp. v. Rayco Corp., 599 P.2d 481, 491 (Utah 1979) (“The
attorney-client privilege protects [an expert’s] report where the expert is
required to examine the client, his personal affairs, or his property, or his
mental impressions, in order to evaluate and transmit the same in a manner
[to] which the client is unable, by reason of insufficient scientific or technical
training.”).

¶21 Together, these cases stand for the proposition that “the
inclusion of a third party in attorney-client communications does not
destroy the privilege if the purpose of the third party’s participation is to
improve the comprehension of the communications between attorney and
client.” United States v. Ackert, 169 F.3d 136, 139 (2d Cir. 1999); see Dahl v.
Bain Cap. Partners, LLC, 714 F.Supp.2d 225, 228 (D. Mass. 2010) (noting that
for the attorney-client privilege to apply to communications involving third
parties, “the third party [must] play[] an interpretive role” by “translat[ing]
information between the client and the attorney” (citations omitted)). To
avoid waiver of the privilege, the participation of the third party must be
essential to effectuate the purposes of the representation. Cavallaro v. United
States, 284 F.3d 236, 249 (1st Cir. 2002) (“The involvement of the third party
must be nearly indispensable or serve some specialized purpose in
facilitating the attorney-client communications.”). The third party, in other
words, must be “a necessary conduit . . . for matters to be effectively
communicated from the [client] to the attorney” or “through which legal
advice” is “effectively communicated” to the client. Riverkeeper, Inc. v.

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Kiley, J. Special Concurrence
Coeymans Recycling Ctr., LLC, No. 1:20-CV-01025 (GTS/CFH), 2024 WL
1053507, at *10 (N.D.N.Y. Mar. 11, 2024) (citation omitted).

¶22 In keeping with these principles, courts have recognized that
the participation of a client’s family member in attorney-client conferences
will not defeat the privilege if the family member enables the attorney and
the client to communicate effectively. In Stroh v. General Motors Corp., 623
N.Y.S.2d 873 (N.Y. App. Div. 1995), for example, the court held that the
presence of an elderly client’s adult daughter at an attorney-client
conference did not destroy the privilege. Id. at 875. Noting that the client,
who was being sued for allegedly causing a car accident that injured
multiple people, was being told to “recall, and perhaps relive, what was
probably the most traumatic experience of her life,” the court held that her
daughter’s presence at the conference was necessary to put the “aged”
client “sufficiently at ease to communicate effectively with counsel.” Id. at
874; accord Hendrick v. Avis Rent-A-Car Sys., Inc., 944 F.Supp. 187, 189–90
(W.D.N.Y. 1996) (holding that communications between a lawyer and the
father of the client, a college student who was rendered a quadriplegic in
an accident, were protected by the attorney-client privilege because the
client’s “injuries and paralysis” necessitated the assistance of his father “for
the purpose of furthering [the client’s] legal interests” (citations omitted)).

¶23 Conversely, courts have made clear that the presence of a
client’s family member at an attorney-client conference will destroy the
privilege if the family member’s assistance was not necessary to enable the
lawyer to effectively represent the client. See Wichansky v. Zowine, No. CV-
13-01208-PHX-DGC, 2015 WL 5693521, at *2 (D. Ariz. Sept. 29, 2015)
(holding that no privilege attached to discussions at attorney-client
conferences attended by client’s father-in-law who “provid[ed] support” as
“a friend” but whose presence “was not necessary to [the client’s]
communications with his counsel”); see also State v. Shire, 850 S.W.2d 923,
931–32 (Mo. Ct. App. 1993) (holding that no privilege attached to
conversations between client and divorce attorney because client’s
daughter was present to provide moral support; “The presence of a third
person . . . such as a relative or friend of the client, who is not essential to
the transmission of information or whose presence is not reasonably
necessary for the protection of the client’s interest, will vitiate the
privilege.” (citation omitted)); Molner v. Molner, 218 N.Y.S.3d 53, 53 (N.Y.
App. Div. 2024) (rejecting wife’s claim that attorney-client communications
involving her parents were present because “neither [the wife] nor her
parents provided any evidence” to show that her parents’ participation was
“necessary to enable the attorney-client communication” (cleaned up)).

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Kiley, J. Special Concurrence
¶24 In Accomazzo, this Court held that attorney-client conferences
to which the client’s parents were privy were protected by the privilege
even though — as far as the Accomazzo opinion indicates — there was no
reason to believe that the presence of the client’s parents was necessary to
facilitate her communications with her attorney. 234 Ariz. at 173, ¶ 15.
Accomazzo thus expanded the scope of the privilege to include a client’s
parents irrespective of whether their inclusion is necessary to effectuate the
purposes of the representation.

¶25 In support of its holding, Accomazzo cites Sucharew, in which
this Court held that a juvenile’s conversation with his attorney was
protected by the attorney-client privilege notwithstanding the presence of
the juvenile’s parents. Sucharew, 205 Ariz. at 22, ¶ 12. But Accomazzo fails to
acknowledge a critical distinguishing fact, i.e., unlike the wife in Accomazzo,
the client in Sucharew was a “minor.” See Sucharew, 205 Ariz. at 22, ¶ 12.
Noting that the parents “were taking an understandable parental interest
and advisory role in their minor son’s legal affairs,” Sucharew held that
“[t]he presence of a parent in such a capacity at a meeting between [a] child
and counsel does not defeat the attorney-client privilege.” Id. (citation
omitted). Sucharew’s holding that the presence of the juvenile’s parents at
an attorney-client conference did not vitiate the privilege comports with
case law recognizing that a client’s family member may attend an attorney-
client conference without destroying the privilege if the client’s age or
infirmity makes the presence of a trusted family member necessary for the
attorney to effectively represent the client. See supra ¶ 22. Nothing in
Sucharew, however, supports extending its holding from clients who are
minors to those who are competent adults.

¶26 Accomazzo also relies on State v. Archibeque, 223 Ariz. 231
(App. 2009), in which this Court held that the presence of a criminal
defendant’s wife during a meeting with a clergy member did not vitiate the
clergy-penitent privilege. Archibeque, 223 Ariz. at 236–37, ¶ 19. The
Archibeque court held that the inclusion of the defendant’s wife during the
otherwise private meeting was not “inconsistent with a desire to maintain”
the clergy-penitent privilege because the meeting was part of “the
repentance process” of the church to which the defendant and his wife
belonged, and the clergy member “discussed marital issues” and “imparted
spiritual advice concerning marriage” during the meeting. Id. at 236, ¶¶ 17,
19. Because the defendant in Archibeque and his wife were both receiving
spiritual guidance from the clergy member, the Archibeque court’s holding
that their joint participation did not take the meeting outside the scope of
the clergy-penitent privilege is hardly surprising. But nothing in Archibeque,
or any other authority of which we are aware, supports Accomazzo’s holding

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that a competent adult who is capable of handling her own legal affairs can
include her parents in communications with her attorney without waiving
the privilege.

¶27 Accomazzo’s expansion of the privilege is, in our view,
irreconcilable with the familiar principle that the attorney-client privilege
is to be narrowly construed because it impedes the truth-seeking function
of the adjudicative process. See Ariz. Indep. Redistricting Comm’n v. Fields,
206 Ariz. 130, 136, ¶ 14 (App. 2003) (“We narrowly construe constitutional,
common law, and statutory privileges for they are in derogation of the
search for truth.” (cleaned up)); see also Fisher v. United States, 425 U.S. 391,
403 (1976) (“[S]ince the [attorney-client] privilege has the effect of
withholding relevant information from the fact-finder, it applies only when
necessary to achieve its purpose. Accordingly[,] it protects only those
disclosures necessary to obtain informed legal advice which might not have
been made absent the privilege.” (citations omitted)).

¶28 Accomazzo further departs from settled principles by adopting
a non-waiver presumption in favor of, rather than against, the party
asserting a privilege claim. See 234 Ariz. at 173, ¶ 15. Prior to Accomazzo,
courts were virtually uniform in declining “to assume the facts which
would give rise to a privilege,” see, e.g., State ex rel. Babbitt v. Arnold, 26 Ariz.
App. 333, 336 (1976), instead requiring the party asserting that a particular
communication was privileged to establish the facts necessary to warrant
such a finding. See Steiger v. Superior Ct., 112 Ariz. 1, 3 (1975) (“When a
privilege is asserted, the burden of establishing that a matter is privileged
is upon the party claiming the privilege.” (citation omitted)); see also United
States v. Landof, 591 F.2d 36, 39 (9th Cir. 1978) (affirming determination that
discussion at attorney-client meeting was not privileged due to presence of
third party because client “could not show to the trial court’s satisfaction
that [the third party] was acting as an attorney or an agent at the meeting”).
Accomazzo reversed this presumption, holding that attorney-client
communications that include the client’s parents will be deemed privileged
unless and until the party seeking disclosure proves otherwise. See 234 Ariz.
at 173, ¶ 15.

¶29 For the reasons set forth above, we believe that Accomazzo sets
forth a novel interpretation of the attorney-client privilege at odds with
decades of case law recognizing that the inclusion of a third party in
attorney-client communications will vitiate the privilege unless the party
asserting the privilege establishes that (1) the third party is an agent of the
attorney or the client or (2) the third party’s presence is necessary for the
lawyer’s effective representation of the client.

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Kiley, J. Special Concurrence
¶30 Again, neither party has asked us to reconsider Accomazzo. In
any event, it would hardly be fair to retroactively modify the scope of the
attorney-client privilege as delineated in Accomazzo after the challenged
communications have already taken place. After all, whether a particular
communication with an attorney is privileged depends primarily on
“whether the client reasonably understood the communication to be
confidential.” Clements v. Bernini, 249 Ariz. 434, 440, ¶ 11 (2020) (cleaned
up). In light of Accomazzo, there was nothing unreasonable (or inaccurate)
about Cristina’s understanding of the scope of the privilege at the time she
authorized her lawyer and her mother to exchange confidential
information. Whether Accomazzo should be revisited, therefore, is a matter
that must be left for another day, if raised in an appropriate case.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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