Background
Cristina Gelvin filed for divorce from her husband Kerr Gelvin in Maricopa County Superior Court in 2023. During the proceedings, Wife chose to involve her mother, Ursula Gebert, extensively in her legal representation. Wife’s divorce attorneys obtained a signed “Consent to Communicate Without Waiver of Confidentiality,” authorizing the attorneys to communicate with Mother about all aspects of the divorce and to share any related documents. Both Wife and Mother executed documents invoking Accomazzo v. Kemp, 234 Ariz. 169 (App. 2014), as authority for the proposition that Mother’s participation in attorney communications would not waive the attorney-client privilege.
Husband served discovery requests targeting written communications between Wife’s attorneys and her parents’ estate planning counsel, related billing records, and direct communications between Wife’s attorneys and her parents. Wife objected on privilege grounds. The trial court sustained the objection as to communications with the estate planning counsel but ordered partial disclosure of direct attorney-to-Mother communications that went beyond merely informing Mother of proceedings or memorializing counsel’s mental impressions. The court drew a line between Wife’s attorney copying Mother on communications with Wife versus the attorney independently strategizing with Mother.
Wife sought special action relief in the Court of Appeals, Division One, which reversed the trial court. The appellate court held that Accomazzo created a presumption of privilege for such communications, and that Husband had failed to rebut it. Two judges on the panel issued a concurrence questioning Accomazzo‘s soundness but declined to overrule it, citing fairness concerns about retroactive modification of privilege rules. The Arizona Supreme Court granted review on multiple questions of statewide importance regarding the scope and validity of Accomazzo.
The Court’s Holding
The Arizona Supreme Court, in a unanimous opinion authored by Justice Bolick, vacated the Court of Appeals decision and overruled Accomazzo to the extent it conflicts with the opinion. The Court held that whether the attorney-client privilege extends to third-party communications is an objective determination: the third party’s presence must be objectively necessary to effectuate the attorney-client communication. A client’s subjective expectation of confidentiality—even one memorialized in a written agreement—cannot by itself extend the privilege to third parties. The Court further reaffirmed that the burden to establish the privilege always rests on the party seeking to invoke it.
The Court identified three ways Accomazzo inverted settled privilege law: it used a subjective rather than objective standard to assess third-party presence; it created a presumption that privilege is maintained when a third party is present, rather than requiring a showing of necessity; and it placed the burden of rebuttal on the party seeking disclosure rather than on the party asserting the privilege. The Court also held that, regardless of Accomazzo, direct communications between an attorney and a third party outside the client’s presence are not shielded by the attorney-client privilege, because the third party is neither a client nor receiving legal advice.
On retroactivity, the Court declined to disturb agreements or rulings made before the date of this opinion, given that courts and parties had reasonably relied on Accomazzo. Accordingly, Wife’s attorney-client communications made in Mother’s presence remain protected. However, direct communications between Wife’s attorneys and Mother—which even Accomazzo did not shield—are not protected, and Mother may be deposed regarding facts about the family trusts. The Court remanded to the trial court for further proceedings, leaving open whether Wife’s claimed PTSD could establish objective necessity for Mother’s involvement.
Key Takeaways
- Accomazzo v. Kemp is overruled to the extent it permitted parties to extend the attorney-client privilege to third-party communications based on a subjective expectation of confidentiality or a written agreement alone.
- The attorney-client privilege extends to a third party’s presence only when that presence is objectively necessary to effectuate the attorney-client communication — the same standard applied to recognized exceptions such as translators, agents, and necessary technical experts.
- The burden of proving the privilege, including objective necessity for a third party’s involvement, always rests on the party asserting it, not on the opposing party seeking disclosure.
- Direct communications between an attorney and a third party conducted outside the client’s presence are not protected by the attorney-client privilege, regardless of any consent agreement.
- The ruling applies prospectively only; privilege assertions and agreements made in reliance on Accomazzo before July 17, 2026, are not disturbed.
Why It Matters
This decision settles a significant question in Arizona privilege law that had been left to fester since Accomazzo was decided in 2014. By replacing a subjective, consent-based framework with an objective necessity standard, the Court closes a potential loophole that sophisticated litigants could exploit to insulate a wide range of third-party communications from discovery — simply by executing a written privilege agreement. The ruling reinforces that the attorney-client privilege, though foundational, must be narrowly construed to protect the courts’ truth-seeking function.
Practitioners in Arizona — particularly in family law, estate litigation, and any matter where clients routinely involve family members or business associates in legal strategy — should immediately revisit how they structure third-party communications. Written consent forms modeled on Accomazzo no longer suffice. Going forward, attorneys seeking to include a third party in privileged communications must be prepared to demonstrate an objectively necessary reason for that inclusion, such as a documented mental health condition, language barrier, or comparable functional necessity.