By Alyssa Bocian.
The attorney-client privilege has long been recognized as the oldest common-law privilege safeguarding confidential communications. The privilege is intended to encourage open and candid communication between attorneys and their clients. The public at large benefits from sound legal advice which is dependent on counsel being fully informed by their clients. Arizona codifies the attorney-client privilege in A.R.S § 12-2234, which provides “an attorney shall not, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment.”
Arizona courts have traditionally applied the subjective-intent framework developed in Accomazzo v. Kemp when deciding whether the presence of a third party waives attorney-client privilege. The Court in Accomazzo held that the presence of a third party does not waive the privilege when circumstances demonstrate that the client reasonably expected the communication to remain confidential. The Accomazzo Court also held that a presumption of confidentiality exists when a client’s parent participates in an attorney conference regarding the client’s matter because they have a reasonable expectation that their communications would be confidential.
On July 17, 2026, the Arizona Supreme Court narrowed the scope of this exception in Gelvin v. Parker. This decision restricts the Accomazzo presumption of confidentiality, instead requiring a party seeking to maintain confidentiality of communication with a third party present to prove that the third party’s presence is objectively necessary. The Court leaves open questions about when the involvement of a third party, such as a family member or friend providing support, is sufficiently necessary to preserve the confidentiality of privileged communications.
Background of the Case
Cristina Gelvin filed for divorce from her husband, Kerr Gelvin, in 2023. Cristina hired a divorce attorney with the help of her mother. Cristina and her mother signed a “Consent Without Waiver of Confidentiality” form, allowing her attorneys to contact her mother about her divorce action and provide any documentation related to the matter. This consent form modeled the Accomazzo decision, maintaining Cristina’s expectation of confidentiality and attorney-client privilege with respect to her mother’s communication. During discovery, Kerr served a request for documentation of written communications between Cristina’s counsel and her parents. Cristina objected to this request.
However, the Court granted the husband’s request and ordered disclosure of communications between Cristina’s mother and counsel, excluding communications informing her of the divorce proceedings and counsel’s mental impressions. Cristina sought special action relief, which the Court of Appeals granted because of the Accomazzo presumption of privilege regarding communications between a client’s attorney and that client’s parent. The Court of Appeals reasoned that the signed consent form reflected Cristina’s intention to have her mother’s conversations with her attorney remain confidential. The husband then sought review of the Court of Appeals’ decision.
The New Rule
The Arizona Supreme Court overturned Accomazzo’s presumption of privilege. It reasoned that extending attorney-client privilege to a third party would negate the privilege’s purpose of truthful communication by reducing the ability to obtain relevant evidence at trial. The Court stressed that if a client’s subjective expectation defined such privilege, it could create an exception that swallowed the rule in certain circumstances. The Court held that attorney-client communications with or in the presence of a third party are only protected when objectively necessary to effectuate the attorney-client communication. This objective requirement pulls away from the client’s intent and focuses on the necessity of the third party. In addition to the necessity requirement, the Court shifts the burden of proof to the party seeking to invoke the privilege.
The Court illustrated examples of third party necessity, including: parents being present for the representation of their minor child; presence of a translator for clients that are not proficient in English; and communications when parties have a common interest in the matter. But the Court reasoned that a signed consent form between an adult child and her mother did not rise to the level of necessity that would justify extending privileged status to the communications. Although the consent form memorializes expectations of confidentiality, this is a subjective desire of the client, not objective necessity. Additionally, despite the mother being the source of marital income and knowing facts relevant to the divorce, the Court found that the wife had not demonstrated that the mother is necessary to establish the privilege.
“Objectively Necessary” in Practice
The Court’s ruling places a practical strain on communications surrounding a client’s matter. The implications of a narrower interpretation of privilege requires lawyers and clients to assess a third party’s actual necessity before making privileged communications. Actual necessity is not subjective. Lawyers will have to analyze third parties’ role within the action to rise to the relevant standard. As Gelvin makes clear, relevant knowledge of the matter or a signed consent form is not sufficient to protect conversations.
This decision leaves lingering questions. When does a third party become objectively necessary? Are clients allowed to have a third party in an attorney conference for support? In practice, the “objective necessity” standard may be too blunt. This standard may not account for third parties that are essential to a particular client’s personal capacity to meaningfully consult counsel. Having a relative or friend included in legal discussions for support may not establish the objective necessity required to maintain a privilege.
Additionally, Gelvin assigns the burden of establishing objective necessity, but does not clearly specify how a client can satisfy that burden without revealing very sensitive information the privilege is intended to protect. A party seeking to establish the necessity of a third party’s involvement may face a difficult dilemma. Demonstrating a party’s necessity could require disclosure of the client’s personal circumstances such as health diagnoses, details of domestic abuse, or mental health symptoms.
Overall, the Court’s opinion in Gelvin highlights an ethical balance between allowing relevant information into the courtroom and protecting the confidentiality necessary for effective attorney-client communication. This new standard could undermine the candid communication purpose of the attorney-client privilege by potentially making clients hesitant to involve support persons because of concerns about confidentiality.
Alyssa Bocian is a second-year law student at the Sandra Day O’Connor College of Law. Before law school, she earned her Bachelor’s degree in Business Law from Arizona State University. In her free time, Alyssa enjoys practicing Pilates and hot yoga, thrifting, and spending time with her dog, Charly.
