Even people who have never been to court or had to work with a lawyer personally have heard of attorney-client privilege. Television or film courtroom dramas have introduced the term to just about every household. Attorney-client privilege is what gives clients the freedom and comfort to share all details of their situation without fear of punishment. It allows them to assert their right to representation fully.
As with most rules, there are exceptions to attorney-client privilege, and it is important for clients to understand the exceptions along with the rule. If you are injured by another party’s negligence, have legal questions, and need a legal advocate, connect with a Las Vegas personal injury lawyer from H&P Law for answers and representation.
Attorney-Client Privilege Explained
Under the attorney-client privilege, codified in Nevada Revised Statutes (NRS) §49.045-.115, lawyers are required to keep all communication between themselves and their clients confidential. With this privilege, clients can disclose any information related to their case to their attorneys, even when that information may be damaging or sensitive.
In a nursing home abuse case, clients might be embarrassed about sharing the details of the abuse, but knowing the information must be kept private allows them to speak freely and provides their attorneys with important evidence.
An attorney who breaches attorney-client privilege and reveals privileged information will likely face disciplinary measures and potential disbarment. All communication between attorney and client is “Privileged” information, for example:
- Face-to-face conversations
- Virtual meetings
- Phone conversation
- Email exchanges
- Text exchanges
- Direct messages through online channels
- Written communication
- Clients’ notes
Other parties besides the lawyer’s client can claim attorney-client privilege, including the client’s:
- Legal guardian
- Personal representative, if the client is deceased
- Trustee or other representative if the client is a corporation or other organization
Exceptions to Attorney-Client Privilege
Despite this sacred trust between attorney and client, there are exceptions. When you meet with a Las Vegas personal injury lawyer from H&P Law, you can trust your lawyer to explain how privilege works and the exceptions to it.
Fraud or Other Criminal Acts
When a client enlists legal services from an attorney for the purpose of carrying out a fraudulent act or other crime, attorney-client privilege does not apply. For example, a client seeks legal help in creating a company but really plans to use it as a “shell” company used for hiding assets or covering illegal activity. Since these related communications are being used to commit fraud, the attorney is not bound, and the client is not protected by attorney-client privilege under NRS 49.115 (1).
Fraud can factor in personal injury claims as well. A person might make false injury claims to collect compensation. Using a Las Vegas slip-and-fall injury lawyer to pursue those claims fraudulently renders attorney-client privilege void in this situation.
NRS 49.115 (2) states privilege does not apply “as to a communication relevant to an issue between two parties who claim through the same deceased client.” This exception essentially applies to family members and other beneficiaries who all have claims on the assets of a person who has died.
The respective and relevant communication between two individual children and the attorney working to sort out a deceased parent’s estate is an example of this exception.
Breach in Duty
If an attorney fails to fulfill their obligations to a client, perhaps by giving erroneous or improper legal advice, failing to introduce evidence, or neglecting the client, the attorney-client privilege does not apply, according to NRS §49.115 (3). To prove their case against the attorney, the client will likely need to disclose privileged information. While undergoing investigation, the attorney may also have to reveal information typically regarded as privileged.
As per NRS §49.115 (4), there is an exception “as to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness.” “Attestation” is a testimony or confirmation that the contents of a document and the signature of the party signing it are authentic. Wills or trust documents are examples of attested documents.
Estate planning lawyers, for example, often serve as attesting witnesses or a will or trust document. Another party may later object to the authenticity of the signature, calling the signatory’s competence into question. The attorney may have to disclose information related to the attestation.
NRS 49.115(5) establishes that attorney-client privilege does not apply “to a communication 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.”
The exception factored heavily in Hall v. Ladera. Section C of the case discussion cites a prior case decision determining that a lawyer acting as a “common attorney of two parties” cannot disclose communication with clients to strangers, but communication with each respective client is not necessarily privileged should one party sue the other.
The Fiduciary Exception
Many jurisdictions have an additional exception to attorney-client privilege called the “Fiduciary Exception.” Simply stated, a fiduciary is someone who manages money or property for another party. Under this exception, a fiduciary–a trustee or personal representative, for example–is prevented from claiming privilege against beneficiaries regarding matters of trust or estate administration.
Nevada’s exceptions to attorney-client privilege, however, do not include the fiduciary exception. This exclusion was recently emphasized in Canarelli v. Eight Jud. Dis Ct. The Nevada Supreme Court reversed the lower courts’ decision reiterating Nevada’s five exceptions to attorney-client privilege and declining the creation of a sixth.
Laws are complicated, as are exceptions to those laws. If you are facing a legal matter and feeling intimidated by the complexities of those laws and exceptions, connect with H&P Law to restore your peace of mind. A Las Vegas personal injury lawyer from our team will answer your questions, address your concerns, and clarify your confusion.
A Law Firm Using Our Powers for Your Good
If you have suffered damages because of someone else’s negligence, you need an attorney you can trust to help you sort through legalities and reach a positive outcome. When you partner with H&P Law, rest assured your Las Vegas personal injury attorney will hold your communication sacred and uphold all legal responsibilities while working tirelessly to hold the parties responsible for your damages accountable.
We know Nevada law, and we honor your rights. Reach out today for a free consultation.