Evidence: Attorney-Client Privilege/Burden of Proof/Special Master/Crime-Fraud Exception

Clements v. Bernini, No. CR-19-0140-PR (September 9, 2020) (J. Brutinel)

PARTY CLAIMING ATTORNEY-CLIENT PRIVILEGE MUST MAKE PRIMA FACIE SHOWING PRIVILEGE APPLIES/COURT MAY HOLD HEARING TO DETERMINE WHETHER PRIVILEGE APPLIES/COURT MAY NOT INVADE THE PRIVILEGE TO DETERMINE ITS EXISTENCE EVEN WITH IN CAMERA SPECIAL MASTER/PARTY ATTEMPTING TO SET ASIDE PRIVILEGE BASED UPON CRIME-FRAUD EXCEPTION MUST DEMONSTRATE GOOD FAITH AND REASONABLE FACTUAL BASIS TO SUPPORT IN CAMERA REVIEW OF COMMUNICATION

Inmates in Maricopa County jail are given an assigned pin number to make outgoing phone calls and when they make such calls they hear a prerecorded message that the call is being recorded and is subject to monitoring and they should not discuss legal matters on the phone call.  Inmate Christopher Clements made several calls on this phone line to his former attorney. The State claimed these recorded phone calls were not privileged and even if they were, the privilege was defeated by the crime-fraud exception to the privilege.  The trial court ordered a special master to conduct an in camera review of recordings of jail phone calls to determine if the calls were indeed privileged. Clements filed a special action arguing the in camera review was not allowed. The Arizona Court of Appeals declined jurisdiction and the Arizona Supreme Court then accepted jurisdiction vacating and remanding the matter to the trial court.

The attorney-client privilege is codified at  A.R.S.  §§ 13-4062(2)  (criminal  actions)  and 12-2234 (civil actions). When asserting the privilege the proponent must make a prima facie showing that, “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.”

Here the State must give Clements access to the recorded phone calls so that he and his attorney can determine whether they can make the prima facie showing regarding individual calls.

[W]hen assessing the confidentiality of communications made on a recorded line, a trial court should consider the content of any recording warning, the reasonableness of any expectation of confidentiality, and whether the jail's recording policy presents an unreasonable or arbitrary restriction on a defendant's ability to communicate with his counsel . .  .  . When determining  the  existence  of  the privilege,  the trial court may consider the State's argument that because Clements spoke on a recorded line, he failed to treat the communication as confidential and thus, failed to establish that element of the privilege.   At the same time, Clements may raise any arguments regarding unreasonable restrictions on his ability to  confer  with  counsel  or  potential  intrusions  into  the  attorney-client  relationship by the State that would constitutionally prohibit the State's use of the phone calls even if it demonstrated Clements waived the privilege.

An in camera review of the actual communications is only allowed if a prima facie case is made that the privileged applies and the crime-fraud exception applies. The crime-fraud exception defeats communications between client and attorney if the communication is made with the intention of committing or covering up a crime or fraud. In requesting the in camera review, the burden is placed upon the State to “demonstrate ‘a factual basis adequate to support a good faith belief by a reasonable person' that in camera review of the  materials  may  reveal  evidence  to  establish  the  claim  that  the  crime-fraud  exception  applies.”