- Introduction
For twelve years, practitioners in Arizona relied on a rule that permitted a client’s parents to participate in attorney-client conversations without waiving the attorney-client privilege. That rule originally came out of a prenuptial agreement dispute, Accomazzo v. Kemp, in which the wife’s parents attended a meeting with her attorney who drafted her prenuptial agreement. In July of 2026, the Arizona Supreme Court discarded that rule. In Cristina Gelvin v. Hon. Amanda Parker, the Court held that any communication with or in the presence of a third party is only protected by attorney-client privilege when the third party’s presence is objectively necessary to effectuate attorney-client communication. The ruling also placed the burden of proof on the party invoking the privilege, and overruled Accomazzo to the extent that it conflicted. For practitioners working in family law in Arizona, this case drastically changes the rules surrounding the presence of a third party, and carries consequences for clients whose attorneys draft marital agreements or generally engage in forms of communication while a client’s parents are involved in the process.
- Facts of the Case
Cristina Gelvin (wife) filed for divorce from Kerr Gelvin (husband) in 2023. During their marriage, they were financially supported, in part, by Cristina’s parents. When Cristina obtained counsel for her divorce proceedings, she signed a document that authorized her attorneys to communicate with her mother about any and all issues pertaining to the divorce, as well as to release information, documents, and related records. Cristina’s mother signed a similar, separate acknowledgment. Both documents cited Accomazzo (the ruling precedent for third-parties involving themselves in procedural communications) by name, and confirmed their intention to preserve their third-party privileges per that case. When Kerr found out about this situation, he attempted to gather access to all written communication between Cristina’s attorney and her parents, along with communications and time entries involving her parents’ estate planning counsel. The superior court ordered a partial disclosure. The court noted a distinction between the attorney rightfully including Cristina’s mother when in communication with Cristina, and correspondence that took place independently of Cristina in order to strategize about the proceedings. Cristina sought special action relief, and the court of appeals granted it to her, holding that Accomazzo created a presumption of privilege that Kerr had failed to rebut. Kerr petitioned the Arizona Supreme Court for review.
- Legal Issue
The legal issue at hand in this case was whether attorney-client privilege can extend to a third party based solely on a client’s subjective expectation of confidentiality, or if instead, that privilege only applies when a party’s presence is objectively necessary to facilitate communication. Additionally, the court was tasked with deciding where to place the burden of proof: resting either on the party asserting the privilege, or the party seeking disclosure.
- Court Analysis
The court began by analyzing the fundamentals. Per Clements v. Bernini, a party that claims a certain privilege must prove that it will apply to the specific communications that are at hand. That requires showing an attorney-client relationship, a communication that is made to secure or provide legal advice, is made in confidence, and is treated as confidential. This privilege is codified for all civil cases (A.R.S. § 12-2234).
However, the court noted that this privilege is read narrowly, because allowing a third party to hear a confidential communication ordinarily destroys the confidentiality that made the conversation privileged in the first place. The court provided four examples of narrow exceptions in which a third party’s presence does not defeat the privilege due to a form of necessity: A parent who is present in the representation of a minor child (State v. Sucharew), A translator for a client who does not speak English (People v. Osorio). Parties who share a common legal interest (Arizona Independent Redistricting Com’n v. Fields). And an expert whose knowledge is necessary to allow the client and attorney the ability to communicate (U.S. v. Kovel). Following these cases as examples, the court found that whether the privilege reaches a third party is an objective question that can be measured by whether that party’s inclusion in the attorney-client communication was objectively necessary to effectuate that communication. With this understanding, the court set out to examine Accomazzo, finding it inverted in three ways. First, it was framed by examining the client’s intent, rather than the objective necessity of the third party. Second, it presumed that the attorney-client privilege extended to that third party, without questioning the necessity of the third party. Third, it placed the burden upon the party that was seeking disclosure, rather than the party that was claiming the privilege. Ultimately, Accomazzo made protection the default whenever a parent was present for an attorney-client conversation. The court’s treatment of State v. Sucharew displays an example of a time in which parental guidance can fall under this rule and be considered as objectively necessary. The client there was a minor charged with second-degree murder, and his parents attended meetings in an advisory role. The distinction between Sucharew and this case is clear, as it was not yet established that Cristina’s mother was objectively necessary to advise Cristina in her proceedings.
Applying a clarified standard of the examination of necessity in third-party disputes, the court concluded that Cristina did not demonstrate that her mother was necessary to facilitate proper client-attorney communication. While her mother was a source of marital income and knew relevant facts regarding their divorce proceedings, she did not meet that standard of necessity.
- Practical Implications
The practical implications for Cristina Gelvin v. Hon. Amanda Parker are broad, and likely to continue evolving as similar cases arise. The most immediate is the change of burden. A party asserting attorney-client privilege over a communication, written or spoken, that a third party has received, must now establish that the third party’s presence was objectively necessary for proper attorney-client communication. As seen in this case, a mere expectation of confidentiality will not satisfy this high bar. For practitioners, this case provides a new understanding of how to approach client communication when a third party, such as a parent, is present, in cases such as prenuptial agreement conversations, in which the client is a capable adult that does not require additional support to properly communicate with their counsel.
The Court applied its holding prospectively only, so communications made in reliance on Accomazzo before July 17, 2026 remain protected, though the Court clarified that Accomazzo never covered communications outside the client’s presence in the first place. Going forward, third-party participation no longer carries the presumption of confidentiality, and is no longer protected without a showing of objective necessity. That necessity should also be documented while a client is being represented, rather than decided upon after a dispute arises. If the privilege is challenged later on, those communications may be vulnerable to disclosure.
- Conclusion
Cristina Gelvin v. Hon. Amanda Parker replaces a previous judicial presumption of protection with a strong burden when it comes to third-party and attorney-client privileges. Arizona practitioners should no longer assume that their client’s parents may be present or participate in attorney-client communications without first directly displaying their necessity. That necessity must be objective, such as bridging a language barrier. This case is important for practitioners drafting and engaging in protected communications with clients who may be under the assumption that a third party of their choosing can obtain the same protection they do. That assumption is no longer correct, and communications following may be vulnerable if a disclosure dispute arises.