Attorney-Client Privilege
The attorney-client privilege makes certain communications inadmissible, and it has a small set of elements that all must be present.
17. Attorney-Client Privilege
Communications protected by the attorney-client privilege are inadmissible.2
- The privilege protects communications between a lawyer and a client [(or a prospective client).]
- The lawyer may be authorized to practice in any jurisdiction.
- The privilege includes communications to nonlawyers that the client reasonably believes are authorized to practice.
- For the privilege to exist, the communication must have been made confidentially.
- Communications made in the presence of third parties are not privileged.
- Exception: The presence of a third party won’t defeat the privilege if that third party is essential to facilitate the attorney-client communication. Interpreters, assistants who take notes of the conversation, and consulting experts are common examples of third parties whose presence does not defeat the privilege.
- The communication must also have been made for the purpose of facilitating professional legal services.
- The privilege does not cover pre-existing documents or other evidence that a client discusses with their attorney. The discussion falls within the privilege, but not the pre-existing evidence.
- The privilege protects prospective clients, even if they do not hire the attorney, as long as the other elements are met.
- The Nevada FLE tests only the privilege as applied to communications between an individual client and an attorney. The exam does not test application of the privilege to clients who are organizations or corporations.
- Nor does the exam test the rules governing when the privilege protects communications involving representatives of the client or lawyer.
- Nor does the exam test the rules governing application of the privilege to clients with common interests.
- The Federal Rules of Evidence do not codify any attorney-client privilege, so the Nevada FLE tests Nevada’s
- definition of the privilege in NRS 49.045-49.095. That definition is consistent with the privilege recognized in
- other states and under federal common law.
- Principle Five: Lawyers Must Lay a Proper Foundation for the Evidence They Offer.
The attorney-client privilege protects a confidential communication between a client and a lawyer made to facilitate legal services. It has a small set of elements that all must be present.
The attorney-client privilege makes certain communications inadmissible, and it has a small set of elements that all must be present.
- 1A communication between a client and a lawyer. The lawyer may be licensed to practice in any jurisdiction, and the privilege even reaches communications to a nonlawyer if the client reasonably believes that person is authorized to practice law. It also protects a prospective client who consults a lawyer about possible representation, even if the lawyer is never hired, so long as the other elements are satisfied.
- 2The communication must be made confidentially. The general rule is that talking in front of a third party destroys confidentiality, so a conversation overheard by, or held in the presence of, an outsider like a friend or family member is not privileged. There is one tightly drawn exception: a third party whose presence is essential to facilitate the communication does not defeat it, and the classic examples are an interpreter, an assistant who takes notes of the conversation, and a consulting expert.
- 3The communication must be made for the purpose of facilitating professional legal services, so a chat about business or social matters that has nothing to do with seeking legal help is not protected.
The privilege covers the communication itself, not pre-existing documents or evidence. If a client hands the lawyer a contract or a weapon that existed before the consultation, discussing it is privileged but the underlying item is not made privileged simply because it was shown to the lawyer.
Keep the focus on an individual client and a lawyer, because the exam does not test organizational clients, representatives of the client or lawyer, or common-interest arrangements.
lawyer-and-client (or someone the client reasonably believes can practice, or a prospective client)
said in confidence (a stranger in the room breaks it unless that person is essential, like an interpreter or note-taker)
for legal help
it shields the words, not the pre-existing thing the words were about
A prospective client meets a lawyer to discuss a possible lawsuit. Worried about her English, she brings an interpreter who translates the whole conversation. During the meeting she also hands the lawyer a lease she signed two years earlier and explains what it says. She never hires the lawyer. The opposing side later wants to introduce both what she told the lawyer and the lease itself.
The conversation is privileged and excluded; the lease comes in. Flipped variation: if instead she had brought along a friend for moral support who simply sat in and listened (not essential to the communication), the presence of that third party would defeat confidentiality, and the conversation would not be privileged.
An option uses an absolute like 'any time someone else hears it, confidentiality is lost' or 'a contract can never be confidential.'
A third party essential to facilitate the communication (interpreter, note-taker, consulting expert) does not defeat confidentiality, and protection always turns on the elements, not blanket rules.An option claims a pre-existing document becomes privileged because the client handed it to, or discussed it with, the lawyer.
The privilege covers the communication, not pre-existing documents or evidence; showing an item to counsel does not shield the item itself.An option protects a communication while skipping an element, such as treating private social talk as privileged or ignoring the legal-services purpose.
All elements must be present: a confidential communication with a covered client, made for the purpose of facilitating professional legal services.An option leans on a true but irrelevant fact, like 'the lawyer is licensed elsewhere,' 'the client never hired the lawyer,' or 'the listener was a lawyer.'
The lawyer may practice in any jurisdiction and a prospective client is covered even if never hired, so those facts do not change the outcome; check the actual elements instead.a witness or party is asked to reveal, or an exhibit captures, something a client said to a lawyer (or to someone the client thought was a lawyer), or a document the client showed the lawyer.
The moment you see a client talking to counsel, run one quick check: walk the elements in order, covered client (or prospective client, or reasonably-believed-authorized practitioner), confidential (any non-essential third party present?), for legal services, and ask whether the thing offered is the communication itself or a pre-existing item; if any element fails or the item pre-existed the talk, it is not protected.
A client meets with a lawyer to discuss filing a personal-injury claim. Because she is nervous about the meeting, she asks a close friend to come along for moral support. The friend sits in the room the entire time, says nothing, and is not needed to help the client and lawyer understand each other. During the meeting the client describes how the accident happened. The opposing party later seeks to introduce what the client told the lawyer.
Is the client's account of the accident protected by the attorney-client privilege?
A client who speaks little English meets privately with a lawyer to get advice about a possible lawsuit. Because the client and lawyer cannot understand each other, the client brings an interpreter, whose only role is to translate the conversation between them. No one else is present. The client explains the events behind her claim through the interpreter. The opposing party later seeks to compel disclosure of what the client said.
Is the client's explanation protected by the attorney-client privilege?
A person meets confidentially with a lawyer to discuss whether to sue a former business partner. During the meeting she describes the details of the dispute. After the consultation she decides not to retain that lawyer and hires no one. In a later proceeding, the former partner seeks to introduce what she told the lawyer during the consultation.
Is the consultation protected by the attorney-client privilege?
A client meets privately with a lawyer for legal advice and brings a contract she signed three years before the meeting. She hands the lawyer the contract and explains what its terms mean to her. The opposing party later issues a request seeking the contract itself, not the conversation about it.
Is the contract itself protected from disclosure by the attorney-client privilege?
At a private dinner, a person tells a lawyer who is an old friend a story about a recent argument with a neighbor. The person is not seeking legal advice and does not consult the lawyer about any legal matter; she is simply sharing news of her day. No one else is within earshot. The neighbor later seeks to introduce what the person said at dinner.
Is the dinner-table statement protected by the attorney-client privilege?