Nevada Rejects Fiduciary Exception To Attorney-Client Privilege
The fiduciary exception to the attorney-client privilege holds that a fiduciary, such as a trustee of a trust, is disabled from asserting the privilege against beneficiaries on matters of trust administration. Nevada, like California, has codified the attorney-client privilege and five exceptions to that privilege. NRS 49.035 - 49.115. A fiduciary exception is not among the five statutory exceptions.
Yesterday, the Nevada Supreme Court declined to add a sixth exception to the five statutory exceptions. Canarelli v. District Court, 136 Nev. Adv. Op. 29 (2020). Citing the California Supreme Court's decision in Wells Fargo Bank v. Superior Court, 22 Cal. 4th 201, 91 Cal. Rptr. 2d 716, 990 P.2d 591 (2000), the Nevada Supreme Court asserts:
"Jurisdictions with statutory attorney-client privileges like Nevada have overwhelmingly refused to adopt the exception by judicial decree."
In states that have not codified the attorney-client privilege, judges may have more latitude in fashioning exceptions. As the California Supreme Court noted: "What courts in other jurisdictions give as common law privileges they may take away as exceptions." 22 Cal. 4th at 209, 91 Cal. Rptr. 2d at 722, 990 P.2d at 596.
Nevada's Supreme Court Building