Gelvin v. Parker, No. CV-25—0116-PR (July 17, 2026) (J. Bolick) https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2026/CV250116PR.pdf?ver=41ghJuXBdRxoAaoXOJW6dw%3d%3d

ATTORNEY/CLIENT PRIVILEGE APPLIES WHEN 3^RD PARTY IS PRESENT DURING COMMUNICATION ONLY WHEN 3^RD PERSON'S INVOLVEMENT IS OBJECTIVELY NECESSARY TO HELP THE LAWYER AND CLIENT COMMUNICATE OR PROVIDE LEGAL REPRESENTATION AND ONLY WHEN CLIENT IS ALSO PRESENT AND BURDEN TO ESTABLISH PRIVILEGE IS ON THE PARTY SEEKING TO INVOKE IT

In this divorce action, wife asked that her mother be present during attorney-client communications and be provided documents and written communications. Wife and mother signed an agreement indicating they intended these communications to remain confidential. Husband sought to discover written communications between wife's attorney and her parents. Wife objected.

The Maricopa County Superior Court ruled the communications that were not designed to either merely inform wife's mother about the divorce proceedings or to memorialize the mental impressions of wife's counsel” were discoverable despite the attorney/client privilege.

Wife then brought this special action, and the Arizona Court of Appeals granted relief finding Accomazzo v. Kemp, 234 Ariz. 169 (App. 2014) created a presumption of privilege. Husband then sought a review of this decision by the Arizona Supreme Court which accepted review and vacated the court of appeals decision and reversed the trial court in part and remanded.

A.R.S. § 12-2234 establishes the attorney/client privilege in civil actions. In order to obtain the protection 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.”

Because application of the privilege can result in “suppression of the truth .  .  . 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.” As a result, generally a third person's involvement in attorney-client communications destroys the privilege, especially when the client isn't present for the communication. Exceptions exist,  such as when a parent is present, a translator, where parties share a common interest in the litigation, where technical expertise is necessary to facilitate the communication and where a prisoner communicates with his or her lawyer on a recorded line.

Accomazzo went awry when it applied a “subjective” analysis in applying an exception—that the proponent “subjectively possess a reasonable expectation that the communications would be protected.”

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.

Because Accomazzo has been relied upon by courts and parties the holding in this case does not have retroactive application. Accordingly, communications between the attorney and mother where wife was present are protected. Communications between the attorney and mother where wife was not present are not.