In Nevada, the law of attorney-client privilege protects confidential communications between lawyers and their clients from being revealed. 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. This full disclosure of information helps attorneys provide the best advocacy they can for their clients.
NRS 49.095 states that:
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?
- Additional Reading
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.
1. What attorney-client communications are privileged?
Any confidential communications between attorneys and their clients are privileged. This privilege extends to all types of communications, including:
- in-person meetings
- virtual meetings
- phone calls
- emails
- texts
- DMs
- letters
The attorney-client privilege may also be claimed 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.1
2. Are there exceptions?
Yes. The most important exception to the attorney-client privilege in Nevada occurs when the client seeks the 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.
Also not privileged in Nevada are communications relevant to either:
- an issue between parties who make claims through the same deceased client, or
- an issue of breach of duty by the lawyer to their client (or by the client to their lawyer), or
- an issue concerning an attested document to which the lawyer is an attesting witness, or
- 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
- the trustee and beneficiary share a common interest in the matters of trust administration.3
Attorneys who reveal privileged information commit a “breach of fiduciary duty” and could face discipline from the state bar.
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
5. Can clients waive the privilege?
Yes, clients can give their attorney permission to reveal privileged communications. Also, clients can disclose information that the attorney had been keeping secret under the attorney-client privilege. Though once the information is out, it is no longer considered privileged.
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 their 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.
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 applies from the first meeting between a lawyer and a potential client. It does not matter if the potential client never retains the attorney.7
8. What is the work product doctrine?
The work product doctrine allows attorneys to keep their notes and materials for a case private and inadmissible in court. These notes and materials often contain privileged communications from the attorney’s client.
There are some exceptions. For instance, adverse parties may be able to see privileged work product by showing the court:
- undue hardship and
- substantial need.8
Additional Reading
For more in-depth information, refer to these scholarly articles:
- The Attorney-Client Privilege and Former Employees – Catholic University Law Review.
- The Economics of the Attorney-Client Privilege: A Comprehensive Review and a New Justification – Ohio Northern University Law Review.
- Captive without Counsel: The Erosion of Attorney-Client Privilege for Incarcerated Individuals – UCLA Law Review.
- Joint Representations and the Attorney-Client Privilege – University of Memphis Law Review.
- Two Rights Collide: Determining When Attorney-Client Privilege Should Yield to a Defendant’s Right to Compulsory Process Or Confrontation – American Criminal Law Review.
Legal References
- NRS 49.095 – General Rule of Privilege; NRS 49.105. See also Gibbs v. State (2024) Nev. Adv. Op. 13 (“We conclude that a defendant’s call to a defense investigator that is routed through a three-way call is, alone, insufficient to establish waiver of the attorney-client privilege absent a showing that the third party remained present during the conversation.”). The attorney-client privilege is an old common law principle that goes back centuries.
- 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.).
- Same.
- NRS 49.105.
- See note 1.
- Same.
- 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.”).