Christopher Matthew Clements v. Hon. bernini/state

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
CHRISTOPHER MATTHEW CLEMENTS,
Petitioner,
v.
THE HONORABLE DEBORAH BERNINI, JUDGE OF THE SUPERIOR COURT OF
THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF PIMA,
Respondent Judge,
STATE OF ARIZONA,
Real Party in Interest
No. CR-19-0140-PR
Filed September 9, 2020
Appeal from the Superior Court in Pima County
The Honorable Deborah Bernini, Judge
No. CR20183978-001
VACATED AND REMANDED
Order of the Court of Appeals, Division Two
No. 2 CA-SA 2019-0013
Filed April 11, 2019
COUNSEL:
Joseph P. DiRoberto, Tucson; Eric W. Kessler (argued), Kessler Law
Group, Scottsdale, Attorneys for Christopher Matthew Clements
Barbara LaWall, Pima County Attorney, Jacob R. Lines (argued), Deputy
County Attorney, Tucson, Attorneys for State of Arizona
CLEMENTS v. HON. BERNINI/STATE
Opinion of the Court
CHIEF JUSTICE BRUTINEL authored the opinion of the Court, in which
VICE CHIEF JUSTICE TIMMER and JUSTICES BOLICK, GOULD, LOPEZ,
BEENE and CHIEF JUDGE SWANN ∗ joined.
CHIEF JUSTICE BRUTINEL, opinion of the Court:
¶1 A party claiming the attorney-client privilege must make a
prima facie showing supporting that claim. Upon such a showing, the court
may hold a hearing to determine whether the privilege applies. But the
court may not invade the privilege to determine its existence, even in
camera using a special master. Once the privilege has been established, a
party attempting to set it aside under the crime-fraud exception must
demonstrate “‘a factual basis adequate to support a good faith belief by a
reasonable person’ that in camera review of the materials may reveal
evidence to establish the claim that the crime-fraud exception applies.”
United States v. Zolin, 491 U.S. 554, 572 (1989) (internal citation omitted)
(quoting Caldwell v. Dist. Court, 644 P.2d 26, 33 (Colo. 1982)) (emphasis
omitted). Only then may a special master review the privileged
communications.
I. BACKGROUND
¶2 This case arises from a trial court’s order appointing a special
master to conduct an in camera review of recordings of jail phone calls. The
State requested the review in connection with its investigation of
Christopher Clements, who was then incarcerated at the Maricopa County
jail.
¶3 Inmates housed at the Maricopa County jail may place
outgoing calls using an assigned pin number. When a call is placed, a
pre-recorded message first informs the inmate that the call is subject to
monitoring and recording and advises against discussing legal matters. To
facilitate confidential attorney-client communications, the jail does not
monitor or record calls placed to numbers listed with the State Bar of
Arizona. Here, numerous phone calls were placed from the jail to the home
phone number of a criminal defense attorney, a number not listed with the
State Bar. This attorney previously represented Clements but was not his
∗
Justice William G. Montgomery has recused himself from this case.
Pursuant to article 6, section 3, of the Arizona Constitution, the Honorable
Peter B. Swann, Chief Judge of the Arizona Court of Appeals, Division One,
was designated to sit in this matter.
2
CLEMENTS v. HON. BERNINI/STATE
Opinion of the Court
counsel of record when the phone calls were made. Nevertheless, the
attorney informed the jail that he was still providing legal advice to
Clements and publicly stated he might represent Clements in the future.
¶4 The State recognized that the recorded calls might be subject
to the attorney-client privilege and requested that the court order a special
master to review the recordings. Some of these calls were placed to the
attorney from the jail using Clements’s inmate pin number while others
were placed using pin numbers belonging to different inmates. The State
suspected that all the calls were initiated by Clements and, citing “other
efforts to conceal evidence,” stated it had concerns that the calls may not be
privileged. Clements objected, asserting there was sufficient information to
establish the calls were privileged and no information established the
crime-fraud exception to attorney-client privilege.
¶5 The trial court appointed a special master to determine
whether the calls were privileged. It justified the appointment on the basis
that “the underlying facts as to [the] phone calls [were] in dispute,” and that
the attorney was not Clements’s counsel of record.
¶6 Clements filed a special action in the court of appeals
challenging the trial court’s order. In briefing before the court of appeals,
the State raised a new argument that Clements failed to establish the
privilege by speaking on a recorded line. The court of appeals declined
jurisdiction. Clements sought review in this Court, and we accepted
jurisdiction to clarify the process and burden of establishing attorney-client
privilege and litigating challenges to the privilege, both legal issues of
statewide importance. We have jurisdiction pursuant to article 6, section
5(3) of the Arizona Constitution.
II. DISCUSSION
¶7 The attorney-client privilege arises from a defendant’s
constitutional right to due process guaranteed by the Fourteenth
Amendment to the United States Constitution and by article 2, section 4 of
the Arizona Constitution, and from a criminal defendant’s right to the
assistance of counsel under the Sixth Amendment to the United States
Constitution and article 2, section 24 of the Arizona Constitution. See State
v. Warner, 150 Ariz. 123, 127 (1986) (“[I]f an accused is to derive the full
benefits of his right to counsel, he must have the assurance of
confidentiality and privacy of communication with his attorney.”); cf. State
v. Melendez, 172 Ariz. 68, 71 (1992) (finding it would violate a defendant’s
due process rights to permit testimony from his inmate representative even
3
CLEMENTS v. HON. BERNINI/STATE
Opinion of the Court
without an attorney-client relationship). The privilege serves a critical
function by encouraging a client to speak truthfully with his or her lawyer.
A lawyer’s ability to provide legal advice depends on this privilege because
“[u]nless the lawyer knows the truth, he or she cannot be of much assistance
to the client.” Samaritan Found. v. Goodfarb, 176 Ariz. 497, 501 (1993). The
privilege is codified at A.R.S. §§ 13-4062(2) (criminal actions) and 12-2234
(civil actions).
¶8 In a dispute over whether a communication is privileged, the
party claiming the privilege has the burden of making a prima facie
showing that the privilege applies to a specific communication. See State ex.
rel. Babbitt v. Arnold, 26 Ariz. App. 333, 336 (1976). The proponent must
show that 1) there is an attorney-client relationship, 2) the communication
was made to secure or provide legal advice, 3) the communication was
made in confidence, and 4) the communication was treated as confidential.
Samaritan Found., 176 Ariz. at 501. This remains true even in the unusual
circumstance, present in this case, that the party claiming the privilege does
not have possession of the recording of the allegedly privileged
communications.
¶9 Each element of the privilege inquiry is fact specific. The
existence of an attorney-client relationship is evaluated by a subjective test
which examines “the nature of the work performed and . . . the
circumstances under which the confidences were divulged.” Alexander v.
Superior Court, 141 Ariz. 157, 162 (1984) (quoting Developments of the Law—
Conflicts of Interest in the Legal Profession, 94 Harv. L. Rev. 1244, 1321–22
(1981)). Looking at the circumstances of the communication, “the court
must decide whether the party consulting the attorney believes that he or
she is approaching the attorney in a professional capacity and with the
intent of securing legal advice.” State v. Fodor, 179 Ariz. 442, 448 (App.
1994). That is, the inquiry should examine a client’s perception of the
relationship and intent to secure legal advice. Alexander, 141 Ariz. at 162.
Formal representation or status as counsel of record is not required.
¶10 The second element limits the privilege to communications
seeking or providing legal advice. Not all communications made to or
received from an attorney are protected. See Samaritan Found., 176 Ariz. at501–03. Instead, the privilege applies only to those communications
involving legal advice. Id. Thus, the proponent must explain how the
circumstances indicate the communication was made to secure or provide
legal advice. See Fodor, 179 Ariz. at 448; G & S Investments v. Belman, 145
Ariz. 258, 265 (App. 1984) (explaining that privilege does not apply when
4
CLEMENTS v. HON. BERNINI/STATE
Opinion of the Court
an attorney is consulted as a friend or business advisor). Although
individual cases may vary, generally an attorney’s representation to the
court that a communication was made to secure or provide legal advice is
entitled to substantial weight.
¶11 The third and fourth elements of the privilege reflect that only
communications made in confidence and treated as confidential are
protected. “[O]ne who knows that his conversation may be overheard and
makes no effort to safeguard against interception may waive a claim of
confidentiality.” State v. Moody, 208 Ariz. 424, 448 ¶ 79 (2004). The court
must ask “whether the client reasonably understood the [communication]
to be confidential.” State v. Sucharew, 205 Ariz. 16, 22 ¶ 11 (App. 2003)
(quoting Kevlik v. Goldstein, 724 F.2d 844, 849 (1st Cir. 1984)). Permitting the
communication to be overheard by individuals who are not a part of the
confidential relationship usually destroys the confidentiality necessary for
a privileged communication. See id.¶12 Although these general principles apply to incarcerated
defendants, see Moody, 208 Ariz. at 448 ¶ 79, we recognize that an
incarcerated defendant’s ability to confer with counsel is subject to jail
policies. Therefore, a trial court may also consider these polices and their
reasonableness in determining whether confidentiality has been waived.
¶13 For example, other courts have held that an incarcerated
defendant who knowingly speaks with their attorney on a recorded phone
line waives the requirement of confidentiality and thus, waives the
privilege. See United States v. Mejia, 655 F.3d 126, 133 (2d Cir. 2011); Bassett
v. State, 895 N.E.2d 1201, 1208 (Ind. 2008). But see United States v. Walker,
No. 2:10cr186-MHT, 2011 WL 3349365, at *1 (M.D. Ala. July 14, 2011)
(finding confidentiality in communications made over a recorded jail line
where a prompt before the call began indicated attorney-client
communications would not be recorded). We decline to adopt a bright-line
approach here. Instead, when assessing the confidentiality of
communications made on a recorded line, a trial court should consider the
content of any recording warning, the reasonableness of any expectation of
confidentiality, and whether the jail’s recording policy presents an
unreasonable or arbitrary restriction on a defendant’s ability to
communicate with his counsel. See Johnson-El v. Schoemehl, 878 F.2d 1043,
1052 (8th Cir. 1989) (finding restrictions on inmates’ ability to telephone
counsel inadequately justified); Arpaio v. Baca, 217 Ariz. 570, 579 ¶ 28 (App.
2008) (“[C]ourts have the inherent authority and obligation to provide relief
to defendants from jail regulations or decisions by prison administrators
5
CLEMENTS v. HON. BERNINI/STATE
Opinion of the Court
that significantly interfere with or unreasonably burden the exercise of their
Sixth Amendment right to access to counsel.”).
¶14 We note that a jail’s policy to designate specific phone
numbers as non-monitored attorney lines should, within reason,
accommodate the reality that many attorneys communicate with clients
using a cell phone or second office line. Knowingly monitoring
attorney-client communications to prevent the privilege from attaching to
those conversations simply because the phone number used by a defendant
to contact his or her attorney is not listed with the State Bar appears to
constitute an unreasonable burden on a defendant’s ability to confer 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.
¶15 A trial court may also consider whether there have been any
purposeful intrusions by the State into the confidential relationship
between a defendant and his attorney that would violate a defendant’s
constitutional rights, such as opening privileged materials, surreptitious
eavesdropping on privileged communications, or preventing a confidential
conference between a defendant and his or her counsel. See Moody, 208
Ariz. at 448–49 ¶¶ 76, 80; Warner, 150 Ariz. at 127; State v. Pecard, 196 Ariz.
371, 378 ¶ 32 (App. 1999).
¶16 Here, as the proponent of the privilege, the burden to make a
prima facie showing of privilege lies with Clements. Because the
recordings in dispute are in possession of the State and have not been
provided to him, Clements, through counsel, must be allowed to review the
recorded phone calls to determine whether he can validly assert a privilege
regarding individual calls. But Clements does not have a claim of privilege
in recordings in which he did not participate. Thus, if defense counsel
determines that Clements was not a party to an individual call, counsel
must immediately terminate review of that call to avoid invading any
privilege not involving Clements. The trial court is in the best position to
determine if Clements can make a prima facie showing of privilege.
¶17 When determining the existence of the privilege, the trial
court may consider the State’s argument that because Clements spoke on a
recorded line, he failed to treat the communication as confidential and thus,
failed to establish that element of the privilege. At the same time, Clements
may raise any arguments regarding unreasonable restrictions on his ability
to confer with counsel or potential intrusions into the attorney-client
6
CLEMENTS v. HON. BERNINI/STATE
Opinion of the Court
relationship by the State that would constitutionally prohibit the State’s use
of the phone calls even if it demonstrated Clements waived the privilege.
See Johnson-El, 878 F.2d at 1052–53; Moody, 208 Ariz. at 448–49 ¶ 80.
¶18 If the trial court determines that the privilege applies, the
burden would shift to the State to demonstrate “‘a factual basis adequate to
support a good faith belief by a reasonable person’ that in camera review of
the materials may reveal evidence to establish the claim that the crime-
fraud exception applies.” Zolin, 491 U.S. at 572 (1989) (internal citation
omitted) (quoting Caldwell, 644 P.2d at 33) (emphasis omitted). Here,
however, the State has conceded that it cannot meet this burden. Thus,
absent new evidence, if the court determines that the privilege applies, the
State may not review the recordings between Clements and his attorney.
III. CONCLUSION
¶19 For the foregoing reasons, we vacate the order for in camera
review by a special master and remand for proceedings consistent with this
Opinion.
7