Roman Catholic Diocese v. Superior Court

• Decision Date: 07 February 2003
• Docket Number: No. 1 CA-SA 03-0002.,1 CA-SA 03-0002.
• Citation: 204 Ariz. 225,62 P.3d 970
• Parties: The ROMAN CATHOLIC DIOCESE OF PHOENIX, Petitioner, v. The SUPERIOR COURT of Arizona, In and For the COUNTY OF MARICOPA and Eddward Ballinger, a Judge Thereof, Respondent Judge, State of Arizona, Real Party in Interest.
• Court: Arizona Court of Appeals

62 P.3d 970

204 Ariz. 225

The ROMAN CATHOLIC DIOCESE OF PHOENIX, Petitioner, v. The SUPERIOR COURT of Arizona, In and For the COUNTY OF MARICOPA and Eddward Ballinger, a Judge Thereof, Respondent Judge, State of Arizona, Real Party in Interest.

No. -0002.

Court of Appeals of Arizona, Division 1, Department E.

February 7, 2003.

Lewis and Roca, LLP, By James J. Belanger and Robert G. Schaffer, Phoenix, Attorneys for Petitioner.

Richard M. Romley, Maricopa County Attorney, By Paul J. McMurdie and Catherine Leisch, Deputy County Attorneys, Phoenix, Attorneys for Real Party in Interest.

OPINION

IRVINE, Judge.

¶ 1 The Roman Catholic Diocese of Phoenix petitions this Court in a special action, challenging the trial court's order that the Diocese produce certain documents in a grand jury proceeding. The Diocese argues that the trial court applied the incorrect legal standard to determine whether documents are protected by the attorney-client privilege. We find that the case is appropriate for special action review and accept jurisdiction. Because we conclude that the trial court properly interpreted Arizona Revised Statutes ("A.R.S.") section 13-4062(2) (Supp. 2002) by applying our supreme court's interpretation of the corporate attorney-client privilege set forth in Samaritan Foundation v. Goodfarb, 176 Ariz. 497, 862 P.2d 870 (1993), we deny relief.

JURISDICTION

¶ 2 We have discretion to accept or deny special action jurisdiction. State ex rel. Pennartz v. Olcavage, 200 Ariz. 582, 585, ¶ 8, 30 P.3d 649, 652 (App.2001). "Special action jurisdiction is appropriate when there is no plain, speedy and adequate remedy by way of appeal" or "in cases involving a matter of first impression, statewide significance, or pure questions of law." Id. There is no adequate remedy by appeal when a party challenges an order to produce documents by asserting a privilege. See, e.g., Ariz. Bd. of Med. Exam'rs v. Superior Court, 186 Ariz. 360, 361, 922 P.2d 924, 925 (App.1996) (finding special action jurisdiction appropriate "in cases involving the assertion of a privilege against discovery orders"). Additionally, the Diocese has presented a pure question of law. We therefore accept jurisdiction.

FACTS AND PROCEDURAL HISTORY

¶ 3 The State of Arizona served two grand jury subpoenas on the Diocese for various documents. The Diocese asserted that the corporate attorney-client privilege and the work-product doctrine protected some of these documents and withheld them from the grand jury. The State and the Diocese agreed to allow the trial court to conduct an in camera review of the materials. After reviewing the documents, the trial court held a hearing to determine the appropriate standard to apply in determining which documents were protected by the corporate attorney-client privilege. It ultimately applied the privilege as set forth in A.R.S. § 13-4062(2) as interpreted in Samaritan Foundation. The trial court sustained the Diocese's assertion of privilege as to certain documents, required the production of other documents, and required the production of certain documents after they were redacted. The Diocese petitioned this Court to determine the appropriate standard for applying the corporate attorney-client privilege in a criminal proceeding.

DISCUSSION

¶ 4 The Diocese asks us to interpret A.R.S. § 13-4062(2),¹ which is a statutory codification of the attorney-client privilege in criminal cases. It asks us to interpret the criminal privilege statute to incorporate the 1994 amendment to A.R.S. § 12-2234 (Supp. 2002) (amended by Ariz. Sess. Laws 1994, Ch. 334, § 1), which codifies the corporate attorney-client privilege in civil cases.² The Diocese argues, in essence, that both statutes are attempts to codify the same common law privilege so a change to one should be interpreted to apply to both. If we do not do so as a matter of statutory interpretation, the Diocese urges us to do so through common law. Before we consider whether the legislative amendment to the corporate attorney-client privilege for civil cases should also apply to criminal cases, we must review our supreme court's interpretation of attorney-client privilege for corporate clients.³ ¶ 5 Samaritan Foundation was a civil case in which the Arizona Supreme Court interpreted the standard for corporate attorney-client privilege. The court recognized that the purpose of the privilege is "to encourage the client in need of legal advice to tell the lawyer the truth" so that the attorney can provide adequate legal assistance. 176 Ariz. at 501,862 P.2d at 874. The court also recognized that the privilege "can interfere with the search for truth when, for example, the client cannot remember that which it told its lawyer. One would like to go to the lawyer and ask." Id. The court further acknowledged that "the costs of the privilege are potentially much greater when asserted by a corporation over the statements of its agents than when asserted by an individual" because witness communications made by employees may be interpreted as client communications. Id. at 503-04, 862 P.2d at 876-77. Meanwhile, the court noted, "there is no countervailing benefit." Id. at 504, 862 P.2d at 877. To fulfill the purpose of the privilege with respect to corporate clients and reduce the problems, the supreme court applied a standard "that focuses on the relationship between the communicator and the need for legal services." Id. at 505, 862 P.2d at 878. The court held that

where someone other than the employee initiates the communication, a factual communication by a corporate employee to corporate counsel is within the corporation's privilege if it concerns the employee's own conduct within the scope of his or her employment and is made to assist the lawyer in assessing or responding to the legal consequences of that conduct for the corporate client. This excludes from the privilege communications from those who, but for their status as officers, agents or employees, are witnesses.

Id. at 507, 862 P.2d at 880.

¶ 6 At the time of the Samaritan Foundation decision, the statutory civil and criminal attorney-client privileges were substantially similar. See A.R.S. §§ 12-2234 (1994), 13-4062. Although the supreme court cited both the civil and criminal codifications of the attorney-client privilege, Samaritan Foundation, 176 Ariz. at 501, 862 P.2d at 874, its analysis was not based on the language of either statute but on its interpretation of the general privilege. In response to Samaritan Foundation, the Arizona Legislature amended the civil attorney-client privilege statute to broaden the privilege for corporations in civil cases. Ariz. Sess. Laws 1994, Ch. 334, § 1. Under the 1994 amendment, any communications between an attorney and an employee or agent of the corporation, made for the purpose of providing legal advice or obtaining information to provide legal advice, are protected. A.R.S. § 12-2234. Under Samaritan Foundation, the privilege would apply only to employee-initiated communications intended to seek legal advice or to communications concerning the employee's own conduct for the purpose of assessing legal consequences for the corporation. 176 Ariz. at 507, 862 P.2d at 880. The critical distinction between the two interpretations is whether information is being sought or obtained in connection with one's own conduct as an employee.

¶ 7 The Legislature did not, however, amend the criminal attorney-client privilege statute. The Diocese argues that the criminal privilege should be interpreted to include the intent of the 1994 amendment to the civil privilege. We disagree.

¶ 8 "If the statute's language is clear and unambiguous, we give effect to that language and do not apply any other rule of statutory construction." In re Maricopa County Superior Court No. MH XXXX-XXXXXX, 203 Ariz. 351, 353, ¶ 12, 54 P.3d 380, 382 (App.2002). The statute providing for an attorney-client privilege in criminal cases is unambiguous and does not create any additional protection for corporate clients. A.R.S. § 13-4062(2). A plain reading of the 1994 amendment indicates that it does not apply to the attorney-client privilege in criminal cases, and we will not read A.R.S. § 13-4062(2) to include the amendment.

¶ 9 Moreover, to the extent that the 1994 amendment expands the attorney-client privilege interpreted in Samaritan Foundation, it creates a statutory privilege. We will strictly construe a statutory privilege. See State v. Morales, 170 Ariz. 360, 363, 824 P.2d 756, 759 (App.1991) ("Because there was no such privilege at common law, the statute [creating a physician-patient privilege] must be strictly construed."). We cannot read the 1994 amendment to A.R.S. § 12-2234 as expanding the privilege in criminal cases when the criminal statute itself does not include such an expansion.

¶ 10 The Diocese and the State both argue that the legislative history of the 1994 amendment supports their interpretations of the statutes.⁴ The Diocese contends that the available history shows a legislative intent to overrule Samaritan Foundation.⁵ The State argues that while this may be true, the Legislature knew the attorney-client privilege existed in both the criminal and civil statutes, yet the amendment only addressed the civil statute.⁶ Each recognizes that one provision of the amendment was described in both the Senate and House as extending "the attorney client privilege in any civil action to privileged communication between an attorney['s] paralegal or assistant and the client." State Senate Memo Regarding "Strike Everything Amendment to H.B. 2161," dated March 18, 1994 at 2; Memo to House Judiciary Committee, dated April 7, 1994 (emphasis added). Nothing in the legislative history discusses how the changes contained in the bill would affect criminal cases.

¶ 11 We conclude from the language of the statute and the legislative history that the Legislature intended to modify the ruling in ...