471 P.3d 645
Ariz.2020Background
- Christopher Clements, while incarcerated in Maricopa County, placed multiple calls from jail to a criminal defense attorney’s home number; those numbers were not listed with the State Bar and the calls were recorded under jail policy.
- The attorney had previously represented Clements, told the jail he was still providing legal advice, and publicly stated he might represent Clements again, but was not counsel of record at the time.
- The State obtained the recorded calls and sought appointment of a special master to review them for attorney-client privilege and possible crime-fraud exception, alleging concealment and disputing who participated in some calls.
- The trial court appointed a special master for in camera review; Clements challenged that order by special action; the court of appeals declined jurisdiction and the Arizona Supreme Court accepted review.
- The Court held that the privilege proponent must make a prima facie showing of privilege before any in camera invasion; the State conceded it could not meet the Zolin standard here, so the special-master review order was vacated and the matter remanded.
Issues
| Issue | Clements' Argument | State's Argument | Held |
|---|---|---|---|
| Who bears the burden to establish attorney‑client privilege and may the proponent review recordings in State possession to make that showing? | Clements: He can and must be allowed to review recordings in State possession to make a prima facie showing that calls are privileged. | State: Trial court properly appointed a special master because facts (who spoke) were disputed. | Proponent bears burden to make a prima facie showing; because recordings are in State possession, defense counsel may review calls to identify privileged calls but must stop review of calls not involving Clements. |
| Does speaking on a recorded jail line automatically waive confidentiality and the privilege? | Clements: No automatic waiver; courts must consider warning content, reasonableness of confidentiality expectation, and whether jail policy unreasonably burdens access to counsel. | State: Speaking on recorded line shows lack of confidentiality and thus waiver. | No bright‑line rule; waiver determined case‑by‑case considering recording warnings, reasonableness of expectation, and whether jail policy unreasonably restricts access to counsel. |
| May a trial court appoint a special master to review allegedly privileged materials (invading the privilege) to determine whether the privilege exists? | Clements: Court may not invade the privilege to determine its existence; proponent must first show privilege. | State: Appointment justified because underlying facts were disputed and the attorney wasn’t counsel of record. | A court may hold a hearing but may not invade the privilege (even in camera via special master) to determine whether the privilege exists unless the proponent first makes the prima facie showing required. |
| If privilege is established, what showing must the State make to obtain in camera review under the crime‑fraud exception? | Clements: If he establishes the privilege, the State cannot review the calls absent strong evidence; the State has not met the required showing here. | State: Claimed concerns about concealment and crime‑fraud justify in camera review. | The State must show a factual basis adequate to support a good‑faith belief by a reasonable person that in camera review may reveal evidence establishing the crime‑fraud exception (Zolin standard). Here the State conceded it could not meet that burden. |
Key Cases Cited
- United States v. Zolin, 491 U.S. 554 (1989) (sets the standard for allowing in camera review under the crime‑fraud exception)
- Caldwell v. Dist. Court, 644 P.2d 26 (Colo. 1982) (articulates the factual‑basis formulation cited in Zolin)
- State v. Warner, 150 Ariz. 123 (1986) (connects attorney‑client privilege to Sixth and Fourteenth Amendment protections)
- Samaritan Found. v. Goodfarb, 176 Ariz. 497 (1993) (identifies elements required to establish privilege)
- State v. Moody, 208 Ariz. 424 (2004) (addresses waiver when communications may be overheard)
- Alexander v. Superior Court, 141 Ariz. 157 (1984) (applies subjective test for existence of attorney‑client relationship)