Opinion
No. 1 CA-SA 12-0183
09-20-2012
JAMES C. SELL, Trustee of the Participating Trust established under Debtors' First Amended Joint Plan of Reorganization dated 7-7-06 in U.S. Bankruptcy Case No. 05-27993-PHX-GBN, on behalf of the Trust's Participating Investors, Petitioners, v. THE HONORABLE J. RICHARD GAMA, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, DOUGLAS E. TOWLER and STACIE TOWLER, husband and wife; TOWLER & ASSOCIATES, LLC, an Arizona limited liability company; JAMES S. CUNDIFF and JANE DOE CUNDIFF, husband and wife; CTAC GROUP LLC, an Arizona limited liability company; JAMES GLAUSER and CATHY GLAUSER, husband and wife, SQUIRE & COMPANY, PC, a Utah professional corporation; LYNN G. HILLSTEAD and JANE DOE HILLSTEAD, husband and wife; DWAYNE ASAY and JANE DOE ASAY, husband and wife; LEWIS AND ROCA, LLP, an Arizona limited liability partnership; KEITH BEAUCHAMP and JULIET LIM, husband and wife, Real Parties in Interest.
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
Maricopa County
Superior Court
No. CV2007-005734
DECISION ORDER
This special action came on regularly for conference on September 19, 2011. The court, Presiding Judge Philip Hall, Judge Patricia A. Orozco, and Chief Judge Lawrence F. Winthrop participating, has considered the special action petition of James C. Sell ("Trustee"), who has filed this petition on behalf of himself and the participating investors of a Trust (collectively, "Petitioners"). Trustee seeks relief from an order of the trial court filed July 25, 2012, compelling Trustee to produce to defense counsel for Real Parties in Interest all signed joint representation agreements entered by Trustee; his attorneys, Sherman & Howard, L.L.C. ("Sherman & Howard"); and individuals who are investors in and beneficiaries of the Trust.
We accept jurisdiction of Petitioners' special action petition because the trial court's order compels discovery over the objection of a party asserting a privilege; accordingly, Petitioners have no equally plain, speedy, or adequate remedy by appeal. See Ariz. R.P. Spec. Act. 1(a); Twin City Fire Ins. Co. v. Burke, 204 Ariz. 251, 252, ¶ 3, 63 P.3d 282, 283 (2003).
Further, we grant relief. The unsolicited mailing of the letters and proposed joint representation agreement by Sherman & Howard to investors was not a privileged communication protected by the attorney-client privilege. However, any communications between the investors and Sherman & Howard made after the investors took active steps to form an attorney-client relationship between themselves and Sherman & Howard are privileged communications and are protected, absent a waiver. Trustee did not waive any existing attorney-client privilege in defending against the motion to disqualify, and no waiver has otherwise occurred. See State Farm Mut. Auto. Ins. Co. v. Lee, 199 Ariz. 52, 56, ¶ 10, 13 P.3d 1169, 1173 (2000). Consequently, as previously ordered, Real Parties in Interest are only entitled to a copy of the solicitation letter and the unsigned, proposed joint representation agreement sent to each participating investor. Accordingly,
IT IS ORDERED accepting jurisdiction of Petitioners' special action petition.
IT IS FURTHER ORDERED granting Petitioners' request for relief.
IT IS FURTHER ORDERED denying the request for costs and attorneys' fees filed by Real Parties in Interest.
IT IS FURTHER ORDERED that the clerk of this court provide a copy of this Decision Order to each party appearing herein and to the Honorable J. Richard Gama, a Judge of the Superior Court.
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LAWRENCE F. WINTHROP, Chief Judge