                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                              In re the Matter of:

                  DANETTE MILLER, Petitioner/Appellant,

                                        v.

            THOMAS ANDREW MILLER, Respondent/Appellee.

                           No. 1 CA-CV 14-0548 FC
                                FILED 12-17-2015

           Appeal from the Superior Court in Maricopa County
                           No. FC2007-008371
             The Honorable Christopher T. Whitten, Judge

           JURISDICTION ACCEPTED; RELIEF GRANTED


                                   COUNSEL

Danette Miller, Phoenix
Petitioner/Appellant

Thomas A. Miller, Tempe
Respondent/Appellee
                            MILLER v. MILLER
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge John C. Gemmill joined.


C A T T A N I, Judge:

¶1             Danette Miller (“Mother”) appeals from an order
disqualifying her attorney from representing her in ongoing post-divorce-
decree litigation. Although the disqualification order is not appealable, we
exercise our discretion to treat the appeal as a special action. For reasons
that follow, we grant relief, vacate the disqualification order, and remand
for further proceedings consistent with this decision.

                              JURISDICTION

¶2             Mother filed a notice of appeal from an order granting
Thomas Andrew Miller (“Father”)’s motion to disqualify Diane McCulloch
from continuing to act as Mother’s attorney. A disqualification order is not
a final order and thus is not appealable. See Burch & Cracchiolo, P.A. v.
Myers, 237 Ariz. 369, 374, ¶ 13 (App. 2015) (citing Sec. Gen. Life Ins. Co. v.
Superior Court, 149 Ariz. 332, 333–34 (1986)); Simms v. Rayes, 234 Ariz. 47,
48–49, ¶ 1 (App. 2014); see also Ariz. Rev. Stat. (“A.R.S.”) § 12-2101(A).1 But
because Mother has no plain, speedy, or adequate remedy by appeal, we
exercise our discretion to treat this appeal as a special action and we accept
jurisdiction. See Lloyd v. State Farm Mut. Auto. Ins. Co., 189 Ariz. 369, 374–
75 (App. 1996); see also A.R.S. § 12-120.21(A)(4) (court of appeals may
exercise jurisdiction over special action “without regard to its appellate
jurisdiction”).

             FACTS AND PROCEDURAL BACKGROUND

¶3           The parties divorced in 2009. At a December 2, 2013 hearing
to address several issues, including parenting time and attorney’s fees,
Mother introduced emails from Father’s personal email account, which she
claimed were relevant to the issue of Father’s mental health. According to
Mother, she accessed the emails from a phone she purchased for one of the


1     Absent material revisions after the relevant date, we cite a statute’s
current version.

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                            Decision of the Court

parties’ children. Mother saw an email alert on the child’s phone and when
she clicked on it, she realized Father’s personal email account was available
on the phone.

¶4            The parties disputed why Father’s email account was
available on the child’s phone. But Mother admitted that once she realized
she could use the phone to access Father’s account, she searched through
approximately three months of Father’s personal emails looking for
information she thought would be relevant to the ongoing litigation.
Mother forwarded several emails from the phone to herself and then
deleted the sent emails so Father would not see what she had done.

¶5             Three days later, Mother reported the emails to her attorney,
McCulloch, for whom Mother worked as a paralegal. Two days after that,
McCulloch sent a letter to Father’s attorney asserting, among other things,
that Father improperly used the child’s phone for his personal email. The
letter disclosed the emails Mother had forwarded to herself. Father and his
attorney did not respond to the letter. Nor did they object when Mother
referenced the emails during the December 2, 2013 hearing.

¶6            Following the hearing, Father filed a motion to disqualify
McCulloch based on alleged ethical violations stemming from Mother’s
actions in viewing his personal emails. The superior court found that
McCulloch had violated the Arizona Rules of Professional Conduct, see
generally Ariz. R. Sup. Ct. 42., and granted the motion to disqualify. Mother
timely appealed. As noted above, we treat this appeal as a special action
and accept jurisdiction.

                               DISCUSSION

¶7              We review a ruling on a motion to disqualify for an abuse of
discretion. Burch & Cracchiolo, 237 Ariz. at 374, ¶ 14. Because motions to
disqualify “are subject to ‘tactical abuse,’ and are ‘view[ed] with suspicion,’
. . . . [t]hey should be granted ‘[o]nly in extreme circumstances,’ and the
party seeking disqualification has the burden of proof.” Simms, 234 Ariz. at
50, ¶ 8 (first and last alterations in original) (citations omitted).

¶8            The superior court concluded that Mother improperly
accessed Father’s privileged emails. The court noted that there was no
evidence McCulloch, as Mother’s supervisor, made any effort to ensure that
her paralegal’s conduct was “compatible with the professional obligations
applicable to a lawyer[],” and that there was no evidence that McCulloch
had attempted to prevent or mitigate Mother’s misconduct. Finding that
such evidence would be available only if McCulloch testified, the court


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                            Decision of the Court

concluded that under Ethical Rule (“ER”) 3.7 of the Arizona Rules of
Professional Conduct, McCulloch was required to withdraw.2 The court
further concluded that McCulloch’s September 5, 2013 letter ratified
Mother’s misconduct because the letter “misleadingly characterized the
manner in which the messages had been obtained.” After finding that
McCulloch had violated ERs 3.7 and 5.3, the court disqualified her.3

¶9             The superior court’s analysis was flawed because it was
premised on the court’s incorrect conclusion that Father’s emails were
privileged. Father’s motion to disqualify did not assert that his emails were
privileged, and there is no evidence of any such privilege. All except one
of the emails at issue related to Father’s unsolicited requests for legal
services and the prospective attorneys’ automated responses or general
denials of his requests. This court has held that, in determining whether an
attorney–client relationship has been established, the relevant
considerations are the nature of the services rendered, the circumstances
under which the would-be client disclosed confidential information, the
would-be client’s belief he was consulting an attorney in that capacity, and
his “manifested intention to seek professional legal advice.” Hrudka v.
Hrudka, 186 Ariz. 84, 89 (App. 1995), superseded in part on other grounds by
statute, A.R.S. § 25-324; see also Simms, 234 Ariz. at 50, ¶ 11 (also considering
whether the prospective attorney manifested his or her consent to provide
legal services); Arizona State Bar Ethics Opinion No. 02-04 (concluding that
unsolicited emails seeking legal representation do not create an attorney–
client relationship, and noting that there is no expectation of confidentiality
if the email does not request that information be kept confidential, does not
reveal information not already available to the opposing party, and
includes the same information that was sent to several prospective
attorneys).

¶10          Here, Father’s unsolicited emails to various attorneys did not
ask the attorneys to keep any information confidential, did not disclose
information that was not known to the opposing party, and were sent to

2      ER 3.7(a) provides that, subject to certain exceptions, “[a] lawyer
shall not act as advocate at a trial in which the lawyer is likely to be a
necessary witness.”

3      ER 5.3(b) provides that “[w]ith respect to a nonlawyer employed or
retained by or associated with a lawyer: . . . a lawyer having direct
supervisory authority over the nonlawyer shall make reasonable efforts to
ensure that the person’s conduct is compatible with the professional
obligations of the lawyer.”

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                           Decision of the Court

several different attorneys. The attorneys’ responsive emails did not
provide any actual legal advice or manifest an intent to accept Father as a
client. Thus, no attorney–client relationship was formed as a result of these
emails, and they were not privileged.

¶11           The other email at issue, which Father sent to the court-
appointed parenting coordinator, likewise did not contain privileged or
confidential information; the email simply explained the contentious nature
of the case. Thus, none of the emails were privileged.

¶12          We further note that Father did not establish that McCulloch’s
actions or inactions prejudiced his case. There was no evidence that
McCulloch directed Mother to read Father’s emails. And Mother’s use of
the emails at the hearing did not result in the court modifying Father’s
parenting time (as Mother had requested) or awarding Mother her
requested attorney’s fees.4 Finally, after McCulloch provided notice
regarding the emails, Father changed his password to prohibit further
access.

¶13           Because the superior court’s order was based on an erroneous
legal conclusion that the emails were privileged, and because Father did not
establish prejudice stemming from McCulloch’s alleged misconduct, we
vacate the order disqualifying McCulloch and remand for reconsideration
as to whether other sanctions, if any, are appropriate as a result of Mother
viewing Father’s emails.

¶14           Both parties request an award of attorney’s fees and costs on
appeal pursuant to our discretionary authority under A.R.S. § 25-324. Both
parties have limited financial resources as evidenced by the fee deferrals
granted in this appeal, and we decline to award fees and costs under § 25-
324. As the prevailing party, however, Mother is entitled to costs on appeal
as a matter of law under A.R.S. § 12-342.

¶15           In her reply brief, Mother requests sanctions under ARCAP
25, claiming Father made unsubstantiated accusations resulting in a police


4      Mother appealed these rulings. In Miller v. Miller, 1 CA-CV 14-0521
FC, 2015 WL 1787478 (Apr. 16, 2015) (mem. decision), this court vacated
and remanded the order denying Mother’s petition to modify parenting
time, but did so for reasons unrelated to the emails. On September 2, 2015,
the superior court held a hearing following the remand, at which the court
reduced Father’s parenting time, but again did so for reasons unrelated to
the information contained in Father’s emails.

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                           Decision of the Court

report and improperly obtained a fee waiver. We generally do not address
arguments raised for the first time in a reply brief. See Dawson v.
Withycombe, 216 Ariz. 84, 111, ¶ 91 (App. 2007). In any event, we decline to
impose sanctions against Father.

                             CONCLUSION

¶16           For the forgoing reasons, we treat this appeal as a special
action, accept jurisdiction, and vacate the order disqualifying Mother’s
attorney. We further remand to the superior court to determine whether
other sanctions, if any, are warranted.




                                :ama




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