Exceptions to Attorney-Client Privilege

Recently our Estate Planning Attorney, Samantha Amato, attended two events focusing on exceptions to the Attorney-Client Privilege regarding Estates and Trusts. The Probate Bar Luncheon and Wells Fargo’s Cannon Financial Seminar explained that a Trustee or Executor is typically considered the attorney’s client, but it may not be clear to clients that there are certain exceptions to the sacred attorney-client privilege.  For this blog, we will discuss the statute that explains attorney-client privilege in relation to Estates and Trusts, and the statute that gives exceptions to this rule.

The first statute we’ll look at is NRS 49.095, which is the general rule of privilege. This law states that a client has a privilege to refuse to disclose and to prevent any other person from disclosing, confidential communications between the client and lawyer. This could include disclosing information between the client or client’s representatives and the client’s lawyer or the representative of the client’s lawyer, between the client’s lawyer and the lawyer’s representative, or disclosure for the purpose of facilitating the rendition of professional legal services to the client, by the client or client’s lawyer to a lawyer representing another in a matter of common interest. Essentially it gives the client the power to control who has access to certain information and trusts in the lawyer to honor that nondisclosure.

However, there are exceptions to this rule for Trusts and Estates which can be found in NRS 49.115. This law states that there is no privilege as to a communication relevant to an issue between parties who claim through the same deceased client. This exception to the privileged communications basically applies to family members, heirs, and beneficiaries. This law though does not apply to creditors, usually only family members and those involved in the Estate. This law can be broken down into five exceptions to the rule.  If the services of the lawyer were sought or enabled to aid anyone to commit or plan what the client knew was a crime. Communications are relevant to an issue between parties who claim through the same deceased client. Communications are relevant to an issue of breach of duty by the lawyer and their client. Communications are relevant to an issue concerning an attested document to which the lawyer is attesting witness. Finally, communications relevant to a matter of common interest between two or more clients if the communication was made by any of them to a lawyer. Those five parts of the law are what grant lawyers the grounds to supersede attorney-client privilege regarding Trusts and Estates.

Furthermore, there is a fiduciary exemption, which provides that a lawyer may not withhold attorney-client communications from trust beneficiaries or successor Trustees if the communications relate to the administration of the trust and if the lawyer’s services are paid for using trust assets. The discovery commissioner in the Second Judicial District Court of Nevada has recognized the fiduciary exception and thought that it could apply to both Trusts and Estates, which can be found in Restatement (Third) of Trusts, Section 82, comment F.

If you have any question concerning attorney-client privilege for Trusts and Estates or are interested in setting up a Will or Trust, call our Reno law firm today at (775) 210-1501. We have knowledgeable and experienced attorneys who will guide you through the whole process.