Gelvin v. Hon. parker/gelvin

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

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. CV-25-0116-PR
Filed July 17, 2026

Special Action from the Superior Court in Maricopa County
The Honorable Amanda M. Parker, Judge
No. FN2023-002515
REVERSED IN PART AND REMANDED

Memorandum Decision of the Court of Appeals, Division One
1 CA-SA 24-0252
Filed April 1, 2025
VACATED

COUNSEL:

Marlene A. Pontrelli, Vail C. Cloar, Alexandra Crandall, Dickinson Wright
PLLC, Phoenix; Peter B. Swann (argued), Rai Duer, P.C., Phoenix, and
Jeffrey G. Pollitt, Jeffrey G. Pollitt, P.C., Phoenix, Attorneys for Cristina
Gelvin

Markus W. Risinger (argued), Woodnick Law, PLLC, Phoenix; Melinda
Sloma, Sloma Law Group, Phoenix, Attorneys for Kerr Gelvin
 CRISTINA GELVIN V. HON. PARKER/KERR GELVIN
Opinion of the Court

Mikel Steinfeld, Rosemarie Pena-Lynch, Michael C. Jones, Shannon Burns,
Steve Koestner, Gary Kula, Law Office of the Public Defender, Phoenix;
Attorneys for Amici Curiae Maricopa County Indigent Defense Agencies
and Arizona Attorneys for Criminal Justice
_______________

JUSTICE BOLICK authored the Opinion of the Court, in which CHIEF
JUSTICE TIMMER, VICE CHIEF JUSTICE LOPEZ and JUSTICES BEENE,
MONTGOMERY, KING, and PELANDER (Ret.) joined. *
_______________

JUSTICE BOLICK, Opinion of the Court:

¶1 We are asked in this case to clarify the rules regarding when
a third party can be clothed with the attorney-client privilege. We explain
below that, subject to specific exceptions, attorney-client communications
with or in the presence of a third party are protected only when objectively
necessary to effectuate the attorney-client communication, and the burden
to establish the privilege is on the party seeking to invoke it. For that
reason, we vacate the court of appeals’ decision below and overrule the
opinion on which it relied, Accomazzo v. Kemp, 234 Ariz. 169 (App. 2014), to
the extent it conflicts with this opinion.

BACKGROUND

¶2 In 2023, Cristina Gelvin (“Wife”) filed for divorce from her
husband, Kerr Gelvin (“Husband”). During their marriage, they were
supported in part through family trusts funded by Wife’s parents. Wife’s
mother, Ursula Gebert (“Mother”), is at the center of the discovery
controversy before us here.

¶3 When Wife hired her divorce attorneys, she decided to
involve her mother. Wife signed a “Consent to Communicate Without
Waiver of Confidentiality.” The document authorized her attorneys to
“communicate in any manner necessary with Ursula Gebert, my mother,

* Justice Maria Elena Cruz was recused in this matter. Pursuant to article 6,
section 3 of the Arizona Constitution, Justice John Pelander (Ret.) of the
Arizona Supreme Court was designated to sit in this matter.
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Opinion of the Court

about any and all issues regarding my divorce action,” and to “release to
Ursula Gebert any information and any documents and records of any
nature related to the divorce action.” The consent form explicitly invoked
the court of appeals’ decision in Accomazzo, stating Wife’s intention “to
maintain confidentiality of all communications and all information shared
with Ursula Gebert and to retain the [attorney-client] privilege relative to
same.”

¶4 Mother signed her own acknowledgement, similarly citing
Accomazzo and confirming her understanding that all communications and
information shared with her would “remain privileged, confidential and
will not be shared with any other individuals.”

¶5 During discovery, Husband served a request seeking three
categories of documents: (1) written communications between Wife’s
attorney and her parents’ estate planning counsel; (2) time entries for
communications between Wife’s attorney and her parents’ counsel; and
(3) written communications between Wife’s attorney and her parents. Wife
objected based on privilege, confidentiality, and common interest.

¶6 The superior court denied Husband’s motion as to the first
two categories but granted it in part as to the third. The court drew a
distinction: “Importantly, there is a difference between Wife’s attorney
including Wife’s mother on communications that he had with Wife—and
Wife’s attorney communicating with Mrs. Gebert independently to
strategize with Mrs. Gebert about the divorce proceedings.” That is so
because “Accomazzo only protects the former because Mrs. Gebert is not
represented by Wife’s divorce attorney in any capacity.” The court then
ordered disclosure of “communications between Wife’s counsel and Mrs.
Gebert that were not designed to either merely inform Mrs. Gebert about
the divorce proceedings or to memorialize the mental impressions of Wife’s
counsel.”

¶7 Wife sought special action relief. The court of appeals granted
it, holding that Accomazzo created a presumption of privilege over
communications between Wife’s attorney and Mother. Gelvin v. Parker, No.
1 CA-SA 24-0252, 2025 WL 974673, at *1 ¶¶ 1–2 (Ariz. App. Apr. 1, 2025)
(mem. decision). Because the consent form reflected an agreement to
maintain confidentiality, no evidence suggested disclosure to others, and

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Opinion of the Court

Mother and Wife had no adverse interests, the court found Husband had
failed to rebut the presumption. Id. at *3–4 ¶¶ 14–15.

¶8 The opinion’s author, joined by a second judge, also issued a
“special concurrence” 1 that questioned Accomazzo’s soundness. They
explained that Accomazzo had improperly expanded attorney-client
privilege to include parents regardless of necessity, failed to distinguish
controlling precedent, violated the principle that a privilege should be
narrowly construed, and wrongly shifted the burden to the party
challenging privilege. Id. at *6–7 ¶¶ 24–29 (Kiley, J., concurring). Though
they believed Accomazzo was questionable, they noted that Husband had
not asked the court to overturn it and concluded that fairness prevented
retroactive modification of privilege rules after the communications had
occurred. Id. at *7 ¶ 30.

¶9 In the trial court, Husband moved to continue the trial while
he sought review of the court of appeals’ decision in this Court. The court
denied the motion, but noted that in partially reversing its prior order, the
court of appeals “perhaps for the first time ever” interpreted Accomazzo “as
extending the attorney-client privilege to communications between a
lawyer and a third party, regardless of the purpose of those communications,
and irrespective of the client’s presence during, or participation in, those
communications.” (Emphasis in original.) The court noted that the court
of appeals’ opinion raised a difficult question: “If communications between
a lawyer and third party are privileged under the attorney-client privilege,
simply because the lawyer and client say so, where do we go from here?”

¶10 Husband petitioned this Court for review. In supplemental
briefing submitted to this Court, Wife claimed that she suffers from
post-traumatic stress disorder (“PTSD”), stemming from her marriage to
Husband. Wife claims that Mother’s involvement in her divorce
proceedings—including direct communications between Wife’s own
lawyers and Mother without Wife’s involvement—was necessary given her
PTSD.

1 This Court has dropped the terminology of “special concurrence,” as we
could not perceive a difference between a concurrence that was special and
one that was not.
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Opinion of the Court

¶11 We granted review of several questions of statewide
importance: Does Accomazzo extend the attorney-client privilege to
communications between an attorney and a third party outside the client’s
presence? Does Accomazzo preserve the privilege when the third party’s
presence is not necessary to effectuate the purposes of the legal
representation? Does Accomazzo improperly shift the burden to the party
challenging the assertion of privilege to establish facts necessary to refute
it? If Accomazzo protects the communications at issue, should it be limited
or overruled? And we added, if the Court decides that Accomazzo was
wrongly decided, should the Court’s decision be applied prospectively
only? We address these questions below. We have jurisdiction pursuant to
article 6, section 5(3) of the Arizona Constitution.

DISCUSSION

¶12 We review de novo whether the attorney-client privilege
exists. State ex rel. Adel v. Adleman, 252 Ariz. 356, 360 ¶ 10 (2022). Whether
the presence of a third party waives the attorney-client privilege is a mixed
question of law and fact that we also review de novo. Id.

¶13 The confidentiality of communications between lawyer and
client is perhaps the most deeply cherished and protected privilege in
American law. See, e.g., A.R.S. § 12-2234 (establishing the attorney-client
privilege in civil actions); United States v. Jicarilla Apache Nation, 564 U.S. 162,
165 (2011) (“The attorney-client privilege ranks among the oldest and most
established evidentiary privileges known to our law.”). Our legal system
recognizes that such confidentiality is essential to allow individuals to
freely seek legal advice and for attorneys to provide it. The purpose of the
privilege is to encourage a client to freely provide information so that the
attorney can effectively provide representation. Granger v. Wisner, 134 Ariz.
377, 379 (1982). The proponent has the burden of proving the privilege
exists as to specific communications. Adel, 252 Ariz. at 360–61 ¶ 13;
Clements v. Bernini, 249 Ariz. 434, 439–40 ¶ 8 (2020). “The proponent must
show that 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.”
Clements, 249 Ariz. at 440 ¶ 8.

¶14 The first prong, establishing the existence of an attorney-client
relationship, requires an examination of the “client’s perception of the
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relationship and intent to secure legal advice.” Id. ¶ 9. This examination
probes the client’s subjective perception and intent. Id. The second prong
ensures that the privilege extends only to communications involving legal
advice. Id. ¶ 10. The third and fourth prongs consider whether the
communication took place under confidential conditions and whether the
client reasonably believes the communication was confidential. Id. ¶ 11.

¶15 Because privileges “lead to the suppression of truth,” they are
“to be limited narrowly to their purposes.” See, e.g., Indus. Comm’n v.
Superior Court, 122 Ariz. 374, 375 (1979). Thus, although the attorney-client
privilege is sacrosanct, expanding the privilege beyond these narrow
confines diminishes the important justifications for the privilege, reduces
the ability of the opposing party to obtain relevant evidence, and impairs
the truth-seeking function of the legal system. See Ariz. Indep. Redistricting
Comm’n v. Fields, 206 Ariz. 130, 136 ¶ 14 (App. 2003) (citing United States v.
Nixon, 418 U.S. 683, 709–10 (1974)). Accordingly, “[p]ermitting the
communication to be overheard by individuals who are not a part of the
confidential relationship usually destroys the confidentiality necessary for
a privileged communication.” Clements, 249 Ariz. at 440 ¶ 11.

¶16 Courts have recognized limited exceptions to this rule where
the third party is an agent of the party or necessary to effectuate the
attorney-client communication. See, e.g., State v. Sucharew, 205 Ariz. 16, 22
¶ 12 (App. 2003). Such exceptions include: a parent’s presence in
representation of a minor child, id., a translator where the client is not
English-proficient, People v. Osorio, 549 N.E.2d 1183, 1186 (N.Y. 1989), and
communications where parties sharing a common interest in the litigation
are present, Ariz. Indep. Redistricting Comm’n, 206 Ariz. at 142 ¶ 39.
Likewise, the privilege may be extended where technical expertise is
necessary to facilitate communications between the client and attorney. See,
e.g., United States v. Kovel, 296 F.2d 918, 921 (2d Cir. 1961) (recognizing that
agents who are indispensable to the communication can be covered by the
privilege); Nat’l Steel Prods. Co. v. Superior Court, 164 Cal. App. 3d 476, 483
(Cal. Ct. App. 1985) (finding that an engineering expert hired to provide
technical analysis did not break confidentiality because it was “reasonably
necessary” for the expert to receive information from the client). Here, Wife
invoked none of these exceptions (although she now argues Mother’s
presence is necessary due to her PTSD) but simply attempted to unilaterally
extend the attorney-client privilege to encompass Mother through an
Accomazzo agreement.
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 CRISTINA GELVIN V. HON. PARKER/KERR GELVIN
Opinion of the Court

¶17 We have also applied a “functional approach” that examines
“the nature, purpose, and context within which the communication
occurs.” Samaritan Found. v. Goodfarb, 176 Ariz. 497, 503 (1993). 2 For
instance, in Clements, we recognized that, under applicable jail policies,
communications between an inmate and his lawyer may remain
confidential even if they are on a recorded line. 249 Ariz. at 440–41
¶¶ 12–18.

¶18 But by definition, a third party typically is not a client; hence,
it is generally inappropriate to extend the attorney-client privilege to a third
party, because doing so detracts from the truth-seeking function of the legal
process without advancing the privilege’s core purposes. See Indus.
Comm’n, 122 Ariz. at 375. The situation is even more attenuated when the
communication is between the attorney and the third party without the
client’s presence to receive legal advice. See Clements, 249 Ariz. at 440 ¶ 10
(stating “the privilege applies only to those communications involving legal
advice”).

¶19 Consequently, the argument that parties’ subjective
expectations can define the attorney-client privilege with regard to third
parties in certain circumstances would create an exception that could
swallow the rule, especially in cases with sophisticated parties who seek to
expand the scope of confidentiality. We therefore hold that the scope of the
privilege is generally an objective determination based on whether
extending the privilege is necessary to effectuate the attorney-client
communication. See Kovel, 296 F.2d at 921–22. A corollary is that parties
cannot create or expand the attorney-client privilege beyond those objective
parameters.

¶20 That is where Accomazzo goes awry. That case presented the
question whether, in a challenge to a prenuptial agreement, the presence of
the wife’s parents in a meeting with her attorney who drafted the
prenuptial agreement constituted a waiver of the attorney-client privilege.
Accomazzo, 234 Ariz. at 171 ¶¶ 2–6. The court of appeals overturned a trial

2 Samaritan Foundation considered communications in the context of a
corporate structure. 176 Ariz. at 500. Subsequent to that opinion, the
Legislature codified the standards for the attorney-client privilege in the
corporate context in § 12-2234(B).
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court decision finding waiver and ordering disclosure. Id. at 174 ¶ 19. The
court stated that “[t]he presence of a third party at an attorney-client
conference will . . . cause waiver, unless ‘the third party’s presence does not
indicate a lack of intent to keep the communication confidential.’” Id. at 173
¶ 14 (quoting Sucharew, 205 Ariz. at 22 ¶ 11). Thus, the court concluded 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 that matter, the client has a reasonable expectation that the
conferences will be confidential.” Id. ¶ 15. The court ruled against
disclosure because “[the husband] presented no evidence to rebut the
presumption that [the wife] reasonably believed that communications with
[the attorney] remained confidential despite her parents’ participation.” Id.
at 174 ¶ 16.

¶21 Accomazzo inverts the applicable law of privilege in three
significant ways. First, it determines whether the privilege exists where a
third party is present during an attorney-client conference based on the
client’s intent and reasonable expectation, rather than objectively. See id. at
173 ¶ 15. Second, it creates a presumption that the privilege is maintained
in the presence of the third party, rather than determining whether the third
party is necessary for the communication and fits into one of the waiver
exceptions. See id. Finally, it places the burden on the party seeking
disclosure, rather than on the party seeking to establish the privilege. See
id. at 174 ¶ 16. Accomazzo would therefore make maintaining the privilege
in the presence of a third party the rule rather than the exception. 3

¶22 In essence, Accomazzo creates a new broad exception for the
presence of parents in attorney-client conferences, unless the party seeking
disclosure can prove that the party invoking the privilege did not
subjectively possess a reasonable expectation that the communications
would be protected. That would be a difficult burden to meet in almost any
circumstances, but especially where a written attorney-client agreement
evidences such expectation. This rule is in stark contrast to recognized
waiver exceptions, which are generally grounded in agency or necessity,
and it is contrary to the rule that the party seeking the privilege’s protection
bears the burden of establishing it.

3 The concurring opinion expressed similar misgivings about Accomazzo.
Gelvin, 2025 WL 974673, at *7 ¶ 28 (Kiley, J., concurring).
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Opinion of the Court

¶23 Sucharew, on which Accomazzo relies, 4 is a good example of
when extending the privilege to parents is appropriate. There, a minor
charged with second-degree murder and other serious crimes had his
parents present during attorney-client conferences. Sucharew, 205 Ariz.
at 20 ¶ 4, 21 ¶ 8. Although the court of appeals applied a subjective
standard, 5 its holding focused on the fact that the minor’s parents “were
taking an understandable parental interest and advisory role in their minor
son’s legal affairs,” and that the “presence of a parent in such a capacity at
a meeting between child and counsel does not defeat the attorney-client
privilege.” Id. at 22 ¶ 12. That comports with the necessity standard and
functional approach we have previously embraced and which we reiterate
in this opinion. Here and in Accomazzo, by contrast, the clients invoking
privilege are adults who have shown no special need to have parents
advising them or protecting their interests.6

¶24 Nor, as the trial court ruled, does the “common interest”
doctrine apply here. That doctrine is a narrow exception to the rule that
third-party communications are not protected by the attorney-client
privilege, which applies only when the parties (usually co-parties) share a
common legal interest, not merely a shared desire for a particular outcome.
Ariz. Indep. Redistricting Comm’n., 206 Ariz. at 142 ¶ 37, 142–43 ¶ 40. Here,
Mother is not a party and has no legal interest in the dissolution
proceedings.

¶25 Additionally, unlike the court of appeals, we do not read
Accomazzo to extend the privilege for third parties when the client is not
present. See Gelvin, 2025 WL 974673, at *3 ¶ 14. Because the third party was

4 Accomazzo also cited State v. Archibeque, 223 Ariz. 231 (App. 2009), which
dealt with the clergy-penitent privilege that is inapplicable here. 234 Ariz.
at 173 ¶ 15.
5 Sucharew improperly and unnecessarily employed a subjective test to

assess whether the privilege applied, focusing on whether the third party’s
presence indicates a “lack of intent to keep the communication
confidential.” 205 Ariz. at 22 ¶ 11. We disavow that portion of the opinion.
6 As noted, Wife claims here that she suffers PTSD and therefore needs

Mother to help her process attorney-client communications. To the extent
this remains relevant in light of our disposition, it may be considered on
remand.
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neither seeking legal advice nor was an actual client, the attorney-client
privilege does not apply. See Clements, 249 Ariz. at 440 ¶ 10. Accomazzo did
not entail such communications, and we do not read it to contradict this
rule.

¶26 To summarize, in all instances, the burden is on the party
seeking to establish attorney-client confidentiality to demonstrate the
requirements are satisfied, including, as to third parties, that the presence
of the third party is objectively necessary to effectuate the attorney-client
communication. We overrule Accomazzo to the extent it conflicts with this
opinion.

¶27 In this case, Mother is the source of marital income. She
knows facts that are relevant to the divorce, but Wife has not yet
demonstrated that Mother is necessary to effectuate attorney-client
communications. The agreement purporting to extend attorney-client
confidentiality, and the subjective expectation of confidentiality it
generated, are not sufficient. Although subjective beliefs and expectations
are largely dispositive of whether an attorney-client relationship exists in
the first place on the part of an actual client, and agreements that
memorialize such expectations and terms are ethically required, the
question of whether attorney-client confidentiality extends to
communications involving third parties is an objective one that cannot be
established on the subjective desires of the client even if set forth in the kind
of agreement that was used here.

¶28 That leaves the question of retroactivity. Because Accomazzo
expanded the attorney-client privilege in significant ways and courts and
parties (including here) may have relied on it, we will not disturb
agreements or rulings made prior to the date of this opinion. See Turken v.
Gordon, 223 Ariz. 342, 351 ¶ 44 (2010) (holding that a decision would not be
retroactive if it would produce substantially inequitable results). Indeed,
the parties here agree that it should not be retroactive. Therefore,
communications between Wife and her attorney in Mother’s presence are
protected. However, direct communications between Mother and Wife’s
attorney, which were not shielded by Accomazzo, are not protected, and
Mother may also be deposed as a witness regarding facts about the trust.

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CONCLUSION

¶29 We vacate the court of appeals’ decision, and remand to the
trial court for further proceedings in accord with this opinion.

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