What Is Attorney-Client Privilege? Understanding Your Right to Confidential Communication

Attorney-client privilege can be confusing, especially when you see court cases where attorneys invoke privilege in some situations but not others. Many people assume that whatever you say to a lawyer is automatically confidential and protected. While this is generally true, there are important nuances and exceptions you need to understand to protect yourself.

At The Defenders, we regularly explain attorney-client privilege to our clients because understanding these protections is crucial for building an effective defense. When clients know they can speak freely with us, they provide the complete information we need to represent them aggressively. However, misconceptions about privilege can lead to serious problems if you’re not careful about what you say and to whom.

How Does Attorney-client Privilege Work in Nevada?

Attorney-client privilege is a legal protection that ensures confidentiality of communications between a lawyer and their client. Under Nevada Revised Statutes (NRS) 49.095, this privilege allows clients to share sensitive information with their attorney without fear that information will be used against them in court.

The privilege exists to create a safe space for full disclosure. If clients worried that their lawyers might be forced to reveal their communications, they would hold back crucial information. This would prevent attorneys from providing the best possible representation. The attorney-client privilege relationship ensures that you can freely speak with your lawyer about all aspects of your case to receive the most effective defense possible.

Importantly, you hold the power of this privilege, not your lawyer. This means you have the right to waive the privilege if you choose, but your attorney cannot disclose privileged information without your permission. However, this privilege is not absolute and doesn’t apply under certain specific circumstances that we’ll discuss.

When Does Attorney-client Privilege Begin?

Attorney-client privilege begins from your very first contact with a lawyer, even during an initial consultation. Whether you ultimately hire that attorney or not, the communications during your consultation are protected. This protection covers all types of communication including in-person meetings, phone calls, emails, text messages, and written correspondence.

The privilege also extends to representatives who work under your attorney’s direction. For example, conversations with paralegals, legal assistants, or investigators working on your case are considered privileged because they act as agents of your attorney.

What Communications Are Protected Under Attorney-client Privilege?

Nevada law protects any communication between you and your attorney that was made for the purpose of seeking legal advice. This broad protection includes:

• Initial consultations: Even if you don’t hire the attorney
• All forms of communication: Face-to-face meetings, phone calls, emails, letters, and text messages
• Communications with attorney representatives: Paralegals, legal assistants, and investigators working under your attorney’s supervision
• Documents shared with your attorney: Evidence, records, and other materials provided for legal advice

The key requirement is that the communication must be for the purpose of obtaining legal advice. Casual conversations about unrelated topics may not be protected, but anything relating to your legal situation generally falls under the privilege.

What Is Not Covered Under Attorney-client Privilege?

While attorney-client privilege is strong, it’s not absolute. Nevada law recognizes several important exceptions under NRS 49.115 where the privilege does not apply:

Communications about planning future crimes

If you seek advice from a lawyer to help plan or commit a crime or fraud, those communications are not privileged. For example, if you ask an attorney to help you create a shell company to hide assets fraudulently, those conversations can be disclosed because they involve planning illegal activity.

Disputes involving deceased clients

When there’s a dispute between parties claiming through the same deceased client’s estate, previously privileged communications may be revealed if they’re relevant to resolving the dispute.

Breach of duty issues

Communications can lose their privileged status when there’s an issue involving breach of duty either by the lawyer to the client or by the client to the lawyer. This typically occurs in malpractice cases or fee disputes.

Attorney as witness to documents

If your lawyer witnessed the signing of a document, communications related to that document may not be privileged in certain circumstances.

Common interest situations

When multiple clients consult the same lawyer for a shared purpose, communications related to that common interest may not be privileged among the clients themselves, though they remain privileged against outside parties.

How Does Attorney-client Privilege Apply to Incarcerated Clients?

Attorney-client privilege remains in effect even when you’re in jail or prison, but there are practical challenges that require careful attention. Recent Nevada Supreme Court cases have reaffirmed that privilege protections continue for incarcerated clients, but the jail environment creates risks you need to understand.

Prison and Jail Phone Calls

Most phone calls from jails and prisons are automatically recorded and monitored. While calls between prisoners and their attorneys should be confidential and protected from recording, violations occur frequently across the country. Many facilities have attorney call lines that should not be recorded, but errors and “glitches” have resulted in thousands of privileged calls being improperly captured.

At The Defenders, we advise incarcerated clients to be extremely cautious during phone calls. Even on designated attorney lines, assume calls might be monitored. We prefer to discuss sensitive case details during in-person jail visits where confidentiality can be better ensured.

In-person Jail Visits

Face-to-face meetings with your attorney in jail are generally the most secure way to maintain privilege. These meetings should occur in designated attorney-client meeting rooms that provide confidentiality. However, be aware that some facilities may not have adequate privacy protections, so speak quietly and be mindful of your surroundings.

Who Else Has Confidentiality Privileges in Nevada Courts?

Besides attorneys, Nevada law recognizes several other professional relationships that have similar confidentiality protections:

• Accountants and clients: Communications with certified public accountants are generally privileged under NRS 49.185
• Healthcare providers and patients: Medical information is protected, with exceptions for communicable diseases and court orders
• Mental health professionals and clients: Psychologists, counselors, and therapists have confidentiality protections, with exceptions for threats of harm
• Victim services advocates: Under NRS 49.2547, victim advocates have privilege protections for their communications with crime victims
• Clergy and parishioners: Religious communications are generally protected under Nevada law

Important Exceptions to All Privileges

All these professional privileges have similar exceptions for:

• Communications about planned criminal activity
• Court orders compelling disclosure
• Voluntary disclosure by the client
• Threats of imminent harm to others

What Happens if Attorney-client Privilege Survives Your Death?

Attorney-client privilege continues even after a client’s death. Your attorney must keep privileged communications confidential forever, not just during your lifetime. This protection also continues if you fire your attorney or change legal representation. The privilege belongs to you and your estate, and lawyers cannot unilaterally decide to disclose privileged information after your death.

However, in estate disputes, courts may sometimes allow disclosure of previously privileged communications if they’re necessary to resolve disputes between beneficiaries or other parties claiming through the deceased client.

What Can You Do if Your Attorney Violates Your Privilege?

If an attorney improperly discloses privileged information in Nevada, you have several options for recourse:

1. Professional disciplinary action: You can file a complaint with the Nevada State Bar, which can result in disciplinary action against the attorney including suspension or disbarment. The State Bar takes privilege violations seriously as they undermine the fundamental trust necessary for the attorney-client relationship.
2. Malpractice lawsuit: You may be able to pursue a legal malpractice lawsuit against the attorney for damages caused by the breach of privilege. This could include harm to your case, financial losses, or other damages resulting from the improper disclosure.
3. Suppression of evidence: If privileged information was improperly disclosed to prosecutors or opposing parties, your attorney can file motions to suppress that evidence and prevent its use against you in court proceedings.

It’s important to note that attorneys are sometimes required to disclose certain information despite the general privilege protections. For example, if a client expresses intent to commit future crimes or if there’s an imminent risk of death or serious harm to others, disclosure may be required or permitted under Nevada ethics rules.

Understanding Your Rights and Protections

The attorney-client privilege exists to ensure you can speak freely with your lawyer and receive the best possible legal representation. This relationship encourages full disclosure without fear that your words will be revealed to others and used against you. However, the privilege is complex, and understanding its limits is crucial for protecting yourself.

At The Defenders, we’ve been representing clients in Nevada for years across all types of criminal charges including DUI, domestic violence, fraud, and other criminal offenses. During your consultation, we’ll explain exactly what information is privileged and what isn’t. We’ll also explain who you can speak with regarding your case and who you should avoid discussing details with until you understand the potential consequences.

If you’ve been charged with a crime in Nevada, don’t speak with police or other agencies before consulting with an attorney. Everything you say to law enforcement can be used against you, but your communications with your lawyer are protected. Contact an experienced criminal defense attorney who can guide you through the legal process while preserving your rights and building the strongest possible defense.

Frequently Asked Questions