Arizona Supreme Court Clarifies When the Presence of a Third Person Destroys the Attorney-Client Privilege

Gelvin v. Hon. Parker/Gelvin

Arizona Supreme Court

July 17, 2026

JSH Attorney:  Eileen GilBride

Arizona Supreme Court Clarifies When the Presence of a Third Person Destroys the Attorney-Client Privilege

The Supreme Court recently held that a litigant cannot unilaterally  arrange for her lawyer to communicate with a third party for convenience purposes while also preserving the attorney-client privilege.  Instead, the test for whether the privilege applies is an objective one.  It applies to the lawyer’s conversations with a third party only when objectively necessary to effectuate the attorney-client communication.  And the burden of establishing the privilege is on the party seeking to invoke it.

In Gelvin v. Gelvin, a divorce case, the wife’s mother financially supported the couple in part through family trusts.  For convenience, wife wanted her divorce attorneys to speak with her mother about any and all divorce issues.  Wife therefore signed a consent form authorizing her attorneys to speak with her mother about the divorce and stating her intention to maintain the confidentiality of such conversations and to retain the attorney-client privilege with respect to them.  Wife’s mother also signed a confidentiality acknowledgement.  When husband sought discovery of communications between wife’s parents and wife’s lawyers, wife objected.  The trial court ordered the communications to be disclosed as long as they did not reflect the lawyers’ mental impressions.  On special action, the court of appeals reversed because an earlier court of appeals case called Accomazzo had created a presumption of privilege.  That case held that when a client authorizes a parent to participate in attorney conferences, and the client and parent have no adverse interests, the client had a reasonable expectation that the communication would be confidential.   Two of the three Gelvin judges questioned the soundness of this analysis, but they declined to apply a new privilege rule in this case because the communications had already occurred in reliance on Accomazzo’s rule.

The Supreme Court granted review and overruled Accomazzo, because Accomazzo (a) assumed the privilege existed based on the client’s intent rather than on an objective test; (b) created a presumption that the privilege is maintained in the presence of a third party, instead of determining whether the third party was necessary for the communication; and (c) placed the burden on the party seeking disclosure rather than the party claiming the privilege.

The Supreme Court reasoned that because privileges lead to the suppression of truth, they are to be limited narrowly to their purposes.  And the confidentiality of the situation is even more attenuated when the client is not present to receive legal advice.  Exceptions exist when the third party’s presence is necessary to effectuate the communication—such where a parent needs to be present for a child client, a translator needs to be present for a client who is not English-proficient, where co-parties share a common legal interest, or where technical expertise is necessary to facilitate the communications. Parties, however, cannot unilaterally create or expand the privilege beyond those parameters.

Here, wife did not invoke any of these exceptions, and she did not prove that mother’s presence was necessary to effectuate the communication.  Instead, she unilaterally tried to extend the privilege to include her mother without demonstrating a necessity such as the situations noted above.  As such, wife’s counsel’s communications with mother would not be protected.  However, the court declined to apply the new rule to this case, because again the communications in this case had taken place in reliance on Accomazzo’s confidentiality rule.  For the future, however, a party seeking to maintain the confidentiality of communications with third parties will bear the burden of demonstrating that the presence of the third party is objectively necessary to effectuate the attorney-client communication.