Wife filed for divorce. During the marriage, they were supported in part through family trusts funded by Wife’s parents. Hence, when Wife hired her divorce attorneys, she decided to involve her Mother. Wife signed a Consent to Communicate Without Waiver of Confidentiality which authorized her attorneys to “communicate in any manner necessary with Ursula Gebert, my mother, about any and all issues regarding my divorce action,” and to “release to Ursula Gebert any information and any documents and records of any nature related to the divorce action.” The consent form explicitly invoked the court of appeals’ decision in Accomazzo, stating Wife’s intention “to maintain confidentiality of all communications and all information shared with Ursula Gebert and to retain the attorney-client privilege relative to same.”  Mother signed her own acknowledgement, similarly citing Accomazzo and confirming her understanding that all communications and information shared with her would “remain privileged, confidential and will not be shared with any other individuals.”

During discovery, Husband served a request seeking three categories of documents: (1) written communications between Wife’s attorney and her parents’ estate planning counsel; (2) time entries for communications between Wife’s attorney and her parents’ counsel; and (3) written communications between Wife’s attorney and her parents. Wife objected based on privilege, confidentiality, and common interest. The Superior Court denied Husband’s motion as to the first two categories, but granted it in part as to the third. “Importantly” the Superior Court wrote, “there is a difference between Wife’s attorney including Wife’s mother on communications that he had with Wife — and Wife’s attorney communicating with Mrs. Gebert independently to strategize with Mrs. Gebert about the divorce proceedings” because “Accomazzo only protects the former because Mrs. Gebert is not represented by Wife’s divorce attorney in any capacity.” The Superios Court then ordered disclosure of communications between Wife’s counsel and Mother that were not designed to either merely inform Mother about the divorce proceedings or to memorialize the mental impressions of Wife’s counsel.

The Court of Appeals reversed, holding that Accomazzo created a presumption of privilege over communications between Wife’s attorney and Mother. Because the consent form reflected an agreement to maintain confidentiality, no evidence suggested disclosure to others, and Mother and Wife had no adverse interests, the court found Husband had failed to rebut the presumption.

The Supreme Court granted review and overruled Accomazzo.

Courts have recognized limited exceptions “where the third party is an agent of the party or necessary to effectuate the attorney-client communication. Such exceptions include: a parent’s presence in representation of a minor child, a translator where the client is not English-proficient, and communications where parties sharing a common interest in the litigation are present. Likewise, the privilege may be extended where technical expertise is necessary to facilitate communications between the client and attorney. Here, Wife invoked none of these exceptions (although she now argues Mother’s presence is necessary due to her PTSD) but simply attempted to unilaterally extend the attorney-client privilege to encompass Mother through an Accomazzo agreement.  We have also applied a ‘functional approach’ that examines ‘the nature, purpose, and context within which the communication occurs.’ For instance, in Clements, we recognized that, under applicable jail policies, communications between an inmate and his lawyer may remain confidential even if they are on a recorded line. But by definition, a third party typically is not a client; hence, it is generally inappropriate to extend the attorney-client privilege to a third party, because doing so detracts from the truth-seeking function of the legal process without advancing the privilege’s core purposes. The situation is even more attenuated when the communication is between the attorney and the third party without the client’s presence to receive legal advice. Consequently, the argument that parties’ subjective expectations can define the attorney-client privilege with regard to third parties in certain circumstances would create an exception that could swallow the rule, especially in cases with sophisticated parties who seek to expand the scope of confidentiality. We therefore hold that the scope of the privilege is generally an objective determination based on whether extending the privilege is necessary to effectuate the attorney-client communication. A corollary is that parties cannot create or expand the attorney-client privilege beyond those objective parameters….

“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.

“In this case, Mother is the source of marital income. She knows facts that are relevant to the divorce, but Wife has not yet demonstrated that Mother is necessary to effectuate attorney-client communications. The agreement purporting to extend attorney-client confidentiality, and the subjective expectation of confidentiality it generated, are not sufficient. Although subjective beliefs and expectations are largely dispositive of whether an attorney-client relationship exists in the first place on the part of an actual client, and agreements that memorialize such expectations and terms are ethically required, the question of whether attorney-client confidentiality extends to communications involving third parties is an objective one that cannot be established on the subjective desires of the client even if set forth in the kind of agreement that was used here.”

 

Gelvin v. Parker, No.25-0116, 2026 WL 2075523 (Ariz. July 17, 2026).