Bradford Lund’s relatives, the Millers, sought to have a guardian and conservator appointed for Mr. Lund. Mr. Lund, his father and his stepmother opposed the appointment. The Millers’ attorney served Mr. Lund’s prior counsel with a subpoena seeking information relating to the firm’s representation of Mr. Lund. The firm thought it had been contacted by a firm representing Mr. Lund, and therefore did not screen the information it provided for privilege, and instead forwarded the entire client file. Mr. Lund’s current attorney learned of the disclosure and told the Millers’ attorney that the file contained privileged information. Three weeks later, the Millers’ attorney disclosed the entire file, including the allegedly privileged information, as part of a supplemental disclosure statement. Mr. Lund’s attorney filed an emergency motion to prevent further disclosure of the documents. The firm that had forwarded the documents intervened and submitted, under seal, explanations as to why the documents were privileged. The trial court announced that it would review the documents in camera while resolving whether they were subject to privilege. Lund objected to the in camera review, and the court stayed its review while Lund filed a special action, which reached the Arizona Supreme Court.
The Supreme Court held that if “allegedly privileged documents are filed under seal with the trial court, the court may not view the contents until it has determined, as to each document, that in camera review is necessary to resolve the privilege claim.” It noted that both Arizona Rule of Civil Procedure 26.1 and Ethical Rule 4.4, governing inadvertent disclosure, are to be read to limit the use and disclosure of allegedly privileged material while claims regarding the material’s status are ongoing. It applied this principle to judges as well, holding that a trial court may not review allegedly privileged documents until it determines that such review is warranted. The Court advised that if a trial court believes in camera review is indeed warranted, it “should consider” whether the review may be performed by another judge to limit the potential for prejudice, or alternately consider recusal after review.
Justice Brutinel authored the unanimous opinion.
Posted by: Andrew Case