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Arizona Supreme Court Overturns Decision Allowing Special Master to Review Recordings of Jail Phone Calls to Attorney Alleged to be Privileged

Christopher Matthew Clements was an Arizona county jail prisoner when he placed phone calls to a criminal defense attorney. The jail phone system does not permit the monitoring or recording of attorney phone numbers listed with the State Bar, but the number was not listed and the conversations were recorded. The attorney had previously represented Clements but was not his counsel of record. However, Clements informed the jail that the attorney was providing him legal advice and might represent him in the future.

The state recognized that the recordings might be privileged but thought they might contain evidence of crime or fraud. At the state’s request, a judge appointed a special master to review the recordings and determine whether they were privileged. With the aid of Tucson attorney Joseph P. DiRoberto and Scottsdale attorney Eric W. Kessler of the Kessler Law Group, Clements filed a special action in the court of appeals challenging the appointment order.

The court of appeals declined jurisdiction and Clements successfully sought review by the Arizona Supreme Court. The court noted that the party claiming a disputed attorney-client privilege must make a prima facie case for privilege by showing the communication was made in confidence to secure legal advice within an attorney-client relationship and was treated as confidential. Because prisoners’ ability to confer with counsel is limited by jail policies, courts may consider the reasonableness of the policies.

The court refused to adopt a bright-line rule that an incarcerated client who knowingly speaks with an attorney over a monitored and recorded phone line waives the privilege. Instead, the court assessing confidentiality should consider the content of any recorded warning and whether the jail’s policies are an unreasonable or arbitrary restriction on the ability of a defendant to communicate with counsel. “If an inmate has no practical way to communicate with counsel without interception, he can hardly be said to have waived the privilege by choice or inadvertence.”

In this case, the state will have to provide Clements’ attorney with recordings of the phone calls so he can identify which support a valid claim of privilege. The trial court will then consider the waiver issues, considering any unreasonable restriction argument by Clements.

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