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[null,"Prepared By:","Contributors:"]
[null,"Snell & Wilmer","Barbara Dawson"]
[]
[]
[]
["Lex Mundi Global Attorney-Client Privilege Guide"]
[]
["Report Generated: 11/19/2025"]
[]
["View your report results on next tab"]

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["Question","USA, Arizona"]
["Attorney-Client/Solicitor-Client Privilege (ACP)"]
["Is the ACP recognized in your jurisdiction?","Yes. See, e.g., A.R.S. § 12-2234 (codifying ACP in civil context); A.R.S. § 13-4062(2) (codifying ACP in criminal context).\n"]
["If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure in a civil proceeding?\n\nNote: This question is directed primarily to civil law jurisdictions that do not recognize common law jurisdictions’ privilege doctrines.","N/A; however, Arizona’s \nRules of Professional Conduct (specifically, e.g., ER 1.6) set forth additional ethical requirements regarding professional confidentiality.\n"]
["Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product?","The plain text of the civil and criminal statutes codifying the ACP in their relative contexts have noticeable differences. Compare A.R.S. § 12-2234(A) (“In a civil action an attorney shall not, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment. An attorney's paralegal, assistant, secretary, stenographer or clerk shall not, without the consent of his employer, be examined concerning any fact the knowledge of which was acquired in such capacity.”), with A.R.S. § 13-4062(2) (“A person shall not be examined as a witness in the following cases . . . An attorney, without consent of the attorney's client, as to any communication made by the client to the attorney, or the attorney's advice given in the course of professional employment.”); see also generally Roman Catholic Diocese of Phoenix v. Superior Court, 204 Ariz. 225, 62 P.3d 970 (Ct. App. 2003) (discussing legislative amendments to civil statute, but not criminal statute).\nA criminal defendant may also implicitly waive attorney-client communications by claiming ineffective assistance of counsel. See, e.g., State v. Cuffle, 171 Ariz. 49, 51, 828 P.2d 773, 775 (1992). Similarly, a criminal defendant asserting an insanity defense who lists a mental health expert as a trial witness waives work product privilege, as to the defendant’s statements to the expert—such statements (to an expert retained solely for the purpose of trial preparation) are otherwise protected. State v. Hegyi, 242 Ariz. 415, 418, 396 P.3d 1095, 1098 (2017).\nIn the civil context, a malpractice action may also waive attorney-client privilege, when “the party claiming the privilege has interjected the issue of advice of counsel into the litigation to the extent that recognition of the privilege would deny the opposing party access to proof without which it would be impossible for the factfinder to fairly determine the very issue raised by that party.” State Farm Mut. Auto. Ins. Co. v. Lee, 199 Ariz. 52, 62, 13 P.3d 1169, 1179 (2000).\n"]
["In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP?  (e.g., in the U.S.: the Upjohn approach, control group test, etc.)","Section 12-2234(B) of the Arizona Revised Statutes sets forth the consideration for corporate entities: [A]ny communication is privileged between an attorney for a corporation, governmental entity, partnership, business, association or other similar entity or an employer and any employee, agent or member of the entity or employer regarding acts or omissions of or information obtained from the employee, agent or member if the communication is either . . . [f]or the purpose of providing legal advice to the entity or employer or to the employee, agent or member[, or f]or the purpose of obtaining information in order to provide legal advice to the entity or employer or to the employee, agent or member. A.R.S. § 12-2234(B)(1)-(2). However, an employee is not “relieved of a duty to disclose the facts solely because they have been communicated to an attorney.” A.R.S. § 12-2234(B)(3).\n"]
["Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications?","Section 12-2234(B) does not set forth a separate burden between inside and outside counsel, and Arizona courts construe statutes according to their plain language. See, e.g., Stambaugh v. Killian, 242 Ariz. 508, 509, 398 P.3d 574, 575 (2017).\n"]
["Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality?","Not applicable. \n"]
["Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar?","Not applicable.\n"]
["Is the common interest doctrine recognized in your jurisdiction?","Yes. See generally Arizona Indep. Redistricting Comm’n v. Fields, 206 Ariz. 130, 75 P.3d 1088 (Ct. App. 2003).\n"]
["How is the doctrine articulated in your jurisdiction?","“The purpose of the common interest doctrine is to permit persons with common interests to share privileged attorney-client and work-product communications in order to coordinate their respective positions without destroying the privilege,” such that “the doctrine protects only those communications made to facilitate the rendition of legal services to each of the clients involved in the conference.” Arizona Indep. Redistricting Comm'n v. Fields, 206 Ariz. 130, 142, 75 P.3d 1088, 1100 (Ct. App. 2003) (emphasis original). Arizona courts have also relied upon the \nRestatement (Third) of Law Governing Lawyers (“\nRestatement”) (2000) for guidance: If two or more clients with a common interest in a litigated or non-litigated matter are represented by separate lawyers and they agree to exchange information concerning the matter, a communication of any such client that otherwise qualifies as privileged [as attorney-client communications] that relates to the matter is privileged as against third persons. Any such client may invoke the privilege unless it has been waived by the client who made the communication. Restatement § 76(1); see also Arizona Indep. Redistricting Comm’n v. Fields, 206 Ariz. 130, 142, 75 P.3d 1088, 1100 (Ct. App. 2003) (quoting Restatement § 76(1)). Specifically, “[e]xchanged communications subject to the common interest doctrine must themselves be privileged as well as related to the parties' common interest, which may be either legal, factual, or strategic in character.” Fields, 206 Ariz. at 142, 75 P.3d at 1100 (internal quotation marks omitted) (quoting Restatement § 76).\n"]
["Must a common interest agreement be in writing?","There is no clear requirement that it be in writing, and at least one court has observed that an affirmative duty to inform the court of the existence of a common interest agreement would “reveal the attorneys' advice that common interests existed between their clients—communications that are protected under the attorney-client privilege.” Lund v. Donahoe, 227 Ariz. 572, 581, 261 P.3d 456, 465 (Ct. App. 2011).\n"]
["Is litigation funding permitted in your jurisdiction?  Are there any professional rules in this respect?","Yes, someone other than a client may pay the lawyer’s fee, but several \nRules of Professional Conduct interact with this. For example, Comment 13 to ER 1.7 states that:\nA lawyer may be paid from a source other than the client, including a co-client if the client is informed of that fact and consents and the arrangement does not compromise the lawyer's duty of loyalty or independent judgment to the client. See ER 1.8(f). If acceptance of the payment from any other source presents a significant risk that the lawyer's representation of the client will be materially limited by the lawyer's own interest in accommodating the person paying the lawyer's fee or by the lawyer’s responsibilities to a payer who is also a co-client, then the lawyer must comply with the requirements of paragraph (b) before accepting the representation, including determining whether the conflict is consentable and, if so, that the client has adequate information about the material risks of the representation.\nER 1.8(f) requires that a lawyer not accept compensation “for representing a client from one other than the client unless: (1) the client gives informed consent; (2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and (3) information relating to the representation of a client is protected as required by ER 1.6.”\nFinally, ER 5.4(c) clarifies that “A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.”\n"]
["Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection","Not directly; however, the converse has been. See, e.g., Matter of Petrie, 154 Ariz. 295, 299, 742 P.2d 796, 800 (1987) (“An attorney-client relationship does not require the payment of a fee but may be implied from the parties’ conduct.”).\n"]
["Is the crime-fraud exception recognized in your jurisdiction?","Yes. See, e.g., Kline v. Kline, 221 Ariz. 564, 212 P.3d 902 (Ct. App. 2009).\n"]
["What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction?","Kline v. Kline, 221 Ariz. 564, 573, 212 P.3d 902, 911 (Ct. App. 2009) (“Arizona law . . . has long recognized a crime-fraud exception to the [attorney-client] privilege.”). State ex rel. Thomas v. Schneider, 212 Ariz. 292, 297, 130 P.3d 991, 996 (Ct. App. 2006) (“[T]he privilege is not extended when there is a prima facie showing that a communication with an attorney was used to perpetrate a crime or fraud.”). Buell v. Superior Court, 96 Ariz. 62, 68, 391 P.2d 919, 924 (1964) (“[T]here is a privilege protecting communications between attorney and client. The privilege takes flight if the relation is abused. A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law.” (quoting Clark v. United States, 289 U.S. 1, 15 (1933))).\n"]
["Work Product Doctrine/Litigation Privilege (doctrine that protects materials prepared in anticipation of litigation or for trial)"]
["Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings?  (In the U.S.:  What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?)","Yes. Arizona \nRule of Civil Procedure 26(b)(3) sets forth protection for this information.\n"]
["What are the elements of the protection in your jurisdiction?","Arizona’s\n Rule 26(b)(3) provides that:\n[o]rdinarily, a party may not discover documents and tangible things that another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) prepared in anticipation of litigation or for trial. But, subject to Rule 26(b)(4)(B) [addressing drafts of expert reports or disclosures], a party may discover those materials if:(i) the materials are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has a substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. Ariz. R. Civ. P. 26(b)(3)(A).\nAdditionally, “[i]f the court orders discovery of materials under\n Rule 26(b)(3)(A), it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representatives concerning the litigation.” Ariz. R. Civ. P. 26(b)(3)(B).\nFinally, a party or other person “may obtain his or her own previous statement about the action or its subject matter,” “[o]n request and without the showing required under \nRule 26(b)(3)(A).”\n"]
["Other Privileges"]
["Does your jurisdiction recognize an accountant-client privilege?","Yes. See A.R.S. § 32-749 (“Certified public accountants practicing in this state shall not be required to divulge, nor shall they voluntarily divulge, client records or information they have received by reason of the confidential nature of their employment.”).\n"]
["Does your jurisdiction recognize a mediation privilege?","Yes. See A.R.S. § 12-2238 (“The mediation process is confidential. Communications made, materials created for or used and acts occurring during a mediation are confidential and may not be discovered or admitted into evidence unless one of [four] exceptions is met . . . .”).\n"]
["Does your jurisdiction recognize a settlement negotiation privilege?","Arizona \nRule of Evidence 408 does not allow “offers to compromise” for “prov[ing] liability for or invalidity of the claim or its amount.” However, “the rule does not prevent the use of such evidence in all instances,” including for impeachment. Hernandez v. State, 203 Ariz. 196, 198-200, 52 P.3d 765, 767-69 (2002).\n"]