Nevada’s attorney-client privilege protects confidential communications between lawyers and their clients from being revealed. The attorneys are required to keep these communications secret, and any adverse parties may not force the court to disclose this privileged information.
The purpose of attorney-client privilege is to encourage the free flow of information in the attorney-client relationship. And this full disclosure of information helps attorneys provide the best advocacy they can for their clients.
NRS 49.095 states:
A client has a privilege to refuse to disclose, and to prevent any other person from disclosing confidential communications:
1. Between the client or the client’s representative and the client’s lawyer or the representative of the client’s lawyer.
2. Between the client’s lawyer and the lawyer’s representative.
3. Made for the purpose of facilitating the rendition of professional legal services to the client, by the client or the client’s lawyer to a lawyer representing another in a matter of common interest.
In this article, our Las Vegas criminal defense attorneys discuss:
- 1. What is the attorney-client privilege in Nevada?
- 2. Are there exceptions?
- 3. What about the fiduciary exception?
- 4. Are clients’ notes privileged?
- 5. Can clients waive the privilege?
- 6. What if the client dies?
- 7. Are consultations privileged if the lawyer is never hired?
- 8. What is the work product doctrine?
1. What is the attorney-client privilege in Nevada?
The attorney-client privilege requires lawyers to keep secret any confidential communications between them and their clients. This way, clients feel free to tell their attorneys all the information relevant to their case – even if some of the information is sensitive and damaging. And in return, lawyers get all the information they need in order to determine how best to represent their clients. This privilege extends to all types of communications, including:
- in person meetings
- virtual meetings
- phone calls
If the attorney-client privilege did not exist, then clients would feel constrained about volunteering information to their lawyers; and lawyers would not have all the details necessary to provide competent legal representation. Attorneys who reveal privileged information commit a “breach of fiduciary duty” and could face discipline from the state bar.
The attorney-client privilege may be claimed not only by a lawyer’s clients, but also by a client’s:
- guardian or conservator,
- the personal representative of a deceased client, or
- the successor, trustee or similar representative of a corporation, association or other organization.
Nevada’s attorney-client privileged is codified in the Nevada Revised Statutes from NRS 49.045 to .115. But it is an old common law principle that goes back centuries.1
2. Are there exceptions?
Yes. The most important exception to the attorney-client privilege in Nevada occurs when the client seeks services of the lawyer for the purpose of committing fraud or another crime.
Example: Shane seeks out an attorney for help creating a shell company to fraudulently hide assets. Since Shane is trying to use the attorney to perpetrate a fraud, Shane’s communications with the attorney are not privileged. So if police ask the attorney about it, the attorney can answer without breaking client confidentiality.
The following four attorney-client communications are also not privileged in Nevada:
- Communications relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction.
- Communications relevant to an issue of breach of duty by the lawyer to his or her client or by the client to his or her lawyer.
- Communications relevant to an issue concerning an attested document to which the lawyer is an attesting witness.
- Communications relevant to a matter of common interest between two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of the clients.2
3. What about the fiduciary exception?
Nevada law does not recognize the fiduciary exception to the attorney-client privilege. This means that in Nevada, beneficiaries of a trust are not entitled to see privileged communications between the trustee and the trustee’s attorneys. It does not matter that the trustee has a fiduciary relationship with the beneficiary or that the trustee and beneficiary share a common interest in the matters of trust administration.3
4. Are clients’ notes privileged?
Yes. Notes that clients make when preparing for a case are privileged communications. It does not matter if there was no physical delivery of the notes to the attorney.4
Example: Talya has hired a family law attorney to discuss her divorce. Talya writes down her thoughts and some facts to give the attorney during their next meeting. These notes are considered privileged because they are meant for the attorney. The fact they are not in the attorney’s possession is irrelevant.
5. Can clients waive the privilege?
Yes, clients can give their attorney permission to reveal otherwise privileged communications. Or, clients can disclose information that the attorney had been keeping secret under the attorney-client privilege. But once the information is out, it is no longer considered privileged.
Example: Kirk confesses to his criminal law attorney that he committed a robbery. The criminal law attorney is obligated to keep this secret. But then Kirk posts on social medial that he committed a robbery. Since Kirk revealed this information to the world, it is no longer considered privileged.
Before clients reveal privileged information, clients are advised to consult with their attorneys about whether the waiver of the attorney-client privilege is really in their best interest.
Note that attorney-client communications are not confidential if they are made in the presence of a third party other than someone who works for the lawyer (such as a paralegal or secretary). This means that if a client tells his/her lawyer something in front of a friend or in public – or if the client copies people on an email or text to the lawyer – the client loses the privilege with respect to that specific communication.5
6. What if the client dies?
The attorney-client privilege survives a client’s death. Therefore, attorneys must keep privileged communications with clients confidential forever.
Example: Penny passes away. Penny’s son hired a probate attorney to force Penny’s estate attorney to give him Penny’s client file. But since the attorney-client privilege lives beyond Penny, the attorney cannot give Penny’s son any confidential information in the client file.
Note that the attorney-client privilege remains even if the client fires the attorney.6
7. Are consultations privileged if the lawyer is never hired?
Yes. The attorney-client privilege attaches from the first meeting between a lawyer and potential client. It does not matter if the potential client never retains the attorney.7
Example: Harry is looking for a labor law attorney. He has initial consultations with five of them. He ends up hiring the last one. The four attorneys Harry did not hire must keep secret the information he disclosed to them during their initial consultation.
If the attorney-client privilege did not extend to initial consultations, then prospective clients would not feel free to tell important information to the attorney. And this information is crucial for the attorney to determine whether he/she could represent the potential client competently.
8. What is the work product doctrine?
The work product doctrine allows attorneys to keep their notes and materials for a case private so that adverse parties cannot compel disclosure of them in a court proceeding. Oftentimes, these notes and materials contain privileged communications from the attorney’s client.
There are some exceptions. For instance, adverse parties may be able to see otherwise privileged work product upon a showing of undue hardship and substantial need.8
- NRS 49.095 – General Rule of Privilege; NRS 49.105.
- NRS 49.115.
- Canarelli v. District Court, (Nevada Supreme Court, 2020) 136 Nev. Adv. Op. 29 (Only the Nevada legislature can create exceptions to the attorney-client privilege.).
- NRS 49.105.
- See note 1.
- NRCP 26; see Wynn Resorts, Ltd. v. Eighth Judicial Dist. Court of Nev., (2017) 133 Nev. 369, 399 P.3d 334, 133 Nev. Adv. Rep. 52 (“Nothing in the statute’s plain language indicates that in meeting the requirements of Nevada’s business judgment rule as codified in NRS 78.138, the Board waives attorney-client privilege. Rather, Wynn Resorts is entitled to the presumption that it acted in good faith, such as by receiving outside counsel in reaching a decision.”).