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Can You Keep A Secret? – The Attorney / Client Privilege

The Attorney / Client Privilege is one of the oldest, most respected and important privileges. The underlying purpose is to ensure that clients receive accurate and competent legal advice by encouraging full disclosure to their attorney without fear that the information will be revealed to others. It is often misunderstood and clients frequently have questions about what they can share with their attorney.

The Nevada Rules of Professional Conduct define information that is confidential and also provide when the attorney may disclose information obtained from a client. Thus, the privilege is not absolute.

The rule essentially states that the attorney must keep information confidential unless the client consents to the disclosure. An attorney may (but is not obligated) to disclose: in order to prevent a death or a crime; to make sure the attorney is not breaking any rules; to defend against a claim raised by the client against the attorney; to comply with a court order; or to resolve a conflict the attorney may have. The only time a attorney is obligated to disclose information obtained by a client is if the attorney believes that such disclosure is necessary to stop a crime that will lead to death or substantial bodily harm.

It is important to understand what communications are protected by the privilege. Generally, any communication a client has with an attorney is privileged regardless if it is verbal or written. However, you must be careful to not have third parties taking part in the communication. If that is the case, then there is no privilege and the attorney may be compelled to testify.

Nevada law was recently changed as it relates to the communication an attorney has with her client during the client’s deposition. If the client speaks privately with his attorney when there is a question pending, there is no privilege to that conversation. Similarly, if the attorney asks for a break in the proceedings to confer with her client, there is no privilege to that conversation.

Sometimes the Attorney/Client Privilege can extend to employees of the client and even former employees. It will depend on the nature of the communication and the role the employee (or former employee) has.

Additionally, the attorney may claim that the work she has performed for the client is privileged even in the absence of communication between them. The Attorney Work Product Privilege enables the attorney to protect her thoughts, mental impressions and strategies from being disclosed.

Make certain that you understand what communication and documentation is protected by your attorney.  If you have concerns or questions about it, ask the attorney before you make the disclosure.

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