The Client, Not the Attorney, Holds the Privilege; Yet a Person Should Not Send Unsolicited Confidential Information to a Lawyer
Most people seem to know that, when a client and lawyer communicate, their communication is privileged. Nevada Rules of Evidence, NRS 49.095, specifies that:
A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications:
- Between the client or the client’s representative and the client’s lawyer or the representative of the client’s lawyer.
- Between the client’s lawyer and the lawyer’s representative.
- 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.
“The purpose of the attorney-client privilege is to encourage clients to make full disclosures to their attorneys in order to promote the broader public interests of recognizing the importance of fully informed advocacy in the administration of justice.” Wynn Resorts, Ltd. v. Eighth Judicial Dist. Court in & for Cnty. of Clark, 133 Nev. 369, 374, 399 P.3d 334, 341 (2017).
Lawyers have an ethical duty, specified in Nevada Rule of Professional Conduct Rule 1.6, that prohibits an attorney from using or disclosing information given to him or her on a confidential basis. The plain language of Rule 1.6 prohibits the lawyer, not the client, from revealing information relating to the representation of a client, unless the client consents. This is because the duty is for the benefit of the client rather than the lawyer.
The privilege that prohibits a lawyer from disclosing confidential information may also apply to prospective clients. Nevada Rule of Professional Conduct Rule 1.0A states that, “[T]here are some duties, such as the duty of confidentiality under Rule 1.6, that attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established.” This is because prospective clients generally need to reveal some confidential information to a lawyer during initial consultations in order for the lawyer to determine, among other things, whether a conflict exists with present clients or may exist in the future, and whether the lawyer wishes to undertake representation. However, a person may not unilaterally impose a duty on an attorney not to disclose information if the person has provided information to a lawyer that the lawyer never requested or invited when no attorney-client relationship has been solicited by that attorney. A person seeking representation by a lawyer should therefore never send to a lawyer unsolicited information that the person expects to keep confidential or secret. Instead, a person who may want to be represented by a lawyer should first talk to the lawyer before disclosing any confidential information.
An experienced attorney, such as the lawyers at Lemons, Grundy & Eisenberg, is careful in both obtaining confidential information and maintaining a client’s confidential information, recognizing it is the client, not the attorney, who holds the privilege.