By Kent Berk on August 10th, 2026 in BLOG, Estate Litigation, Fiduciary Litigation, PROBATE LITIGATION, TRUST DISPUTES
The Arizona Supreme Court just changed the rules on when someone else can join your confidential conversations with your lawyer. In probate, trust, estate and fiduciary disputes, that question comes up constantly.
Families rarely go through a trust or estate dispute alone. An adult child helps an aging parent keep track of things. A trustee leans on the accountant who knows the numbers. Two siblings who agree on how a trust should be handled compare notes. A caregiver drives someone to the meeting and stays to listen. All of it is natural, and all of it raises the same question: when another person is part of your conversations with your attorney, are those conversations still protected?
On July 17, 2026, the Arizona Supreme Court gave a clearer, and stricter, answer.
The case: Gelvin v. Parker
In Gelvin v. Parker, a spouse going through a divorce wanted her mother closely involved in the case. The mother had helped fund the couple through family trusts, so she knew the financial picture well. To try to keep those conversations confidential, the daughter and mother each signed a document stating that everything shared with the mother would stay privileged.
When the other side asked for those communications in discovery, the question went all the way to the Arizona Supreme Court: does signing a confidentiality agreement keep a third party’s involvement in attorney/client communications protected? The Court’s answer was no.
It held that simply including a third party in communications you are conducting with your lawyer is protected only in narrow circumstances. For example, when that person’s presence is objectively necessary to the legal advice. You and your lawyer cannot create privilege by agreement where the law would not otherwise recognize it. The burden of proving the communication is protected falls on the person asserting the privilege.
In reaching that result, the Court overruled an earlier decision, Accomazzo v. Kemp, that many lawyers had relied on for the opposite view.
The basics: what the attorney-client privilege actually protects
The attorney-client privilege is one of the oldest protections in the law. It shields confidential communications between you and your lawyer that are made to get or give legal advice. So you can speak candidly. When it applies, the other side generally cannot force you or your lawyer to reveal what was said.
But it protects only confidential communications, and courts read it narrowly. As a rule, the moment a communication is shared with someone outside the attorney-client relationship, the confidentiality, and the protection, can be lost. Two points from Gelvin are worth keeping in mind:
First, the test is objective, not about what you hoped or intended.
Second, a signed confidentiality form does not, by itself, create protection the law would not otherwise give.
The bottom line. You cannot manufacture privilege by paperwork. Whether another person’s involvement is protected depends on the role they actually play, not on the title on a form or a promise to keep things confidential.
When someone else can be inside your privilege
The decision did not close the door. A person other than you and your lawyer can still be inside your protected circle in more than one way.
Necessity is one route, not the only one:
- Your authorized representative or agent. If you validly authorize someone to handle the matter and deal with your lawyer on your behalf. For example, an agent under a power of attorney. That person stands in your shoes and the privilege still belongs to you. You do not have to be unable to act; a capable person may choose to delegate. What you cannot do is add a companion to a conversation you are still running yourself.
- Someone whose participation is genuinely necessary, such as an interpreter you need in order to communicate, or an expert your lawyer must involve in order to advise you.
- A parent or guardian of a minor who is the client.
- People who share a real, common legal interest, handled under a proper agreement.
The common thread is that the person genuinely belongs inside your legal relationship, either because they represent you or because they are truly needed, not simply because their presence is reassuring or convenient. Otherwise, the privilege would extend beyond it’s intended scope: to protect “attorney-client” communications, not all communications.
Why this comes up constantly in probate, trust, and estate matters
Nowhere does the “who else is involved” question arise more than in probate, trust, estate, and guardianship matters. These cases run on family, money, and helpers, and the people around the client are often woven into every conversation. Here is how the issue tends to show up.
An adult child helping an aging parent
A son or daughter sits in on the parent’s meetings, is copied on emails, and speaks with the lawyer to move things along. If the parent is a capable adult and simply wants the help, the child is a support person, and those communications are usually not protected. It can be different if the parent has genuinely authorized the child to act as an agent, for example under a power of attorney, and the child is actually conducting the matter on the parent’s behalf, such as where the parent is impaired due to dementia.
Support role: usually not protected but depends on circumstances.
A trustee getting legal advice about administering the trust
This is the one that surprises people most. When a trustee gets legal advice about administering the trust, the beneficiaries may be entitled to see it.
Arizona recognizes a “fiduciary exception”: advice a trustee obtains in a fiduciary capacity to benefit the trust is generally not shielded from the beneficiaries. Advice the trustee gets about their own potential liability, or in anticipation of a fight with the beneficiaries, is treated differently and is more likely to stay protected, especially if it is handled and paid for separately.
Administration advice: often reachable by beneficiaries, but depends on the circumstances.
Beneficiaries on the same side
Two or more beneficiaries who share the same legal position, for example jointly defending a trust against a challenge, can sometimes share privileged communications under the common-interest doctrine, if they set it up properly with an agreement. The catch is that people aligned today can become adverse tomorrow, and shared communications can then surface between them.
Shared legal interest: possible, if structured.
The family “helper” in an estate dispute
A sibling, a new spouse, a close friend, or a fellow church member comes along to support the client and ends up in the thread. For a capable adult client, that involvement is generally not necessary to the legal advice, so those communications are usually not protected, and the helper can often be questioned about what they know.
Support role: usually not protected.
Advisors, accountants, and caregivers
A financial advisor or accountant can be brought inside the privilege when your lawyer genuinely needs their expertise to advise you. A caregiver who simply attends is usually not protected, unless a real communication need, such as a disability, makes their help necessary.
Heavy involvement by someone who stands to benefit can also raise undue-influence questions, which matters a great deal in elder and vulnerable-adult cases.
Advisors, accountants and caregivers: depends on necessity and setup.
Someone paying a relative’s legal bill
A parent pays for an adult child’s representation, or a child pays for a parent’s. Paying the bill does not make the payer the client, and it does not bring them inside the client’s privilege. Being generous is not the same as being part of the confidential relationship.
Fee payer: not protected on that basis.
How to protect confidentiality going forward
- Keep legal conversations between the client and the attorney. If a family member has input, gather it separately and bring the questions, not the person.
- Do not rely on a signed confidentiality form. After Gelvin, an agreement alone will not create privilege the law does not otherwise recognize.
- Set up any real need in advance. If someone truly needs to be involved, there is often a proper way to do it, a formal power of attorney, an expert engagement, or a common-interest agreement, but it has to be structured correctly and early.
- If you serve as a trustee or personal representative, keep advice about administration separate from advice about your own position, and talk to counsel about how the fiduciary exception affects what beneficiaries can see.
- Watch group emails and texts. Adding a person to a thread that includes your lawyer can waive protection for the whole conversation.
Not sure where your situation stands? Try our free Arizona Privilege Assessment, a private, two-minute self-assessment that walks through who is involved in your matter and flags whether their presence may affect your attorney-client privilege. It stores nothing, and it is general information, not legal advice.
What about conversations that already happened?
The Court applied its decision going forward, not backward. Communications made before July 17, 2026 in reasonable reliance on the prior rule are generally not disturbed. From here on, though, the stricter standard governs, so now is the time to review how the people around you are involved in any active or upcoming matter.
Frequently asked questions
Does signing a confidentiality agreement keep a third party’s involvement privileged?
Generally no. After Gelvin, you and your lawyer cannot create privilege by agreement where the law would not otherwise recognize it. A signed confidentiality or no-waiver form does not, by itself, protect a communication that a third party is part of.
Can my adult child handle my legal matter for me and still keep it confidential?
It depends on the role. If you validly authorize your child to act as your agent, for example under a power of attorney, and they actually handle the matter and deal with the lawyer on your behalf, those communications can stay privileged because the agent stands in your shoes. If your child is simply helping while you still run the matter, they are a support person and those conversations usually are not protected.
I am a trustee. Can the beneficiaries see the legal advice I get?
Often, yes, for advice about administering the trust. Arizona recognizes a fiduciary exception: when a trustee gets legal advice in a fiduciary capacity to benefit the trust, the beneficiaries are generally entitled to see it. Advice you get about your own potential liability, or in anticipation of a dispute with the beneficiaries, is treated differently and is more likely to stay protected, especially if it is handled and paid for separately.
Does having a parent or spouse sit in on my meetings waive the privilege?
For a capable adult client, usually yes, unless that person’s presence is genuinely necessary to the legal advice or they are your authorized representative. A family member who is there for support or a second opinion is generally not inside the privilege, and can often be questioned about what they learned.
Can two beneficiaries on the same side share privileged communications?
Sometimes, under the common-interest doctrine, if they truly share a legal interest, for example jointly defending a trust, and set it up with an agreement, preferably in writing. The caution is that people aligned today can become adverse later, and communications shared under that arrangement can then surface between them.
What if someone else is paying my legal bill?
Paying the bill does not make the payer your lawyer’s client, and it does not bring them inside your privilege. Being generous is not the same as being part of the confidential relationship.
Do these rules apply to conversations that already happened?
No. The Court applied its decision going forward, not backward. Communications made before July 17, 2026 in reasonable reliance on the prior rule are generally not disturbed. The stricter standard governs from that date on.
Not sure whether someone belongs in the room?
Before you include a family member, advisor, trustee, or beneficiary in a conversation about your matter, talk with us. A short consultation now can prevent a costly disclosure later.
