Can a Nevada lawyer require a client or prospective client to sign a non-disclosure agreement before giving legal advice?
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This page answers the general question as of 2023. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The Committee addressed whether a Nevada attorney may require a prospective client to sign an NDA as a condition for receiving legal advice. The triggering facts involved a prospective client who had signed an NDA with a first attorney and then could not freely tell a second attorney what advice the first attorney had given, even though that information was necessary for the second attorney to help. The Committee answers no.
The analysis starts from the direction of the confidentiality duty. Nevada RPC 1.6(a) prohibits the lawyer, not the client, from revealing information relating to the representation, and the duty exists for the benefit of the client. The attorney-client privilege is codified in Nevada at NRS 49.095 and is held by the client, who may "refuse to disclose, and ... prevent any other person from disclosing" confidential communications. The duty of confidentiality also attaches to prospective clients under Nevada RPC 1.18(b) and the guidance in Rule 1.0A(b).
An NDA, the Committee concludes, defeats those purposes. It improperly shifts a benefit that belongs to the client into a restriction that benefits the lawyer. The Committee lists several reasons the requirement is impermissible: an NDA disrupts the client's ability to give informed consent (including by precluding consultation with independent counsel, which Rule 1.8 requires for agreements limiting malpractice liability); it inhibits a client or prospective client from retaining new counsel and is prejudicial to the administration of justice under Rule 8.4(d); it can create a concurrent personal-interest conflict under Rule 1.7 and undermine the lawyer's duty to render candid advice under Rule 2.1; it may impede the client from consulting other professionals; and it could conceal bad legal advice and impair review by a disciplinary authority or a malpractice tribunal.
In practice
Under this opinion, presenting an NDA to a current or prospective client as a condition of receiving legal advice violates the Nevada Rules of Professional Conduct. Per the opinion, the confidentiality obligation imposed by Rule 1.6 binds the lawyer rather than the client, so a lawyer may not use a private contract to bar the client from later disclosing the lawyer's advice (including to a new lawyer). The Committee notes that it remains prudent for a lawyer to advise a client of the consequences of voluntarily disclosing privileged advice to third parties, but that is different from requiring an NDA.
Common questions
Q: Can a Nevada lawyer ask a client to sign an NDA before giving advice?
A: No. The opinion concludes that requiring a current or prospective client to sign an NDA as a condition for receiving legal advice violates the Nevada Rules of Professional Conduct.
Q: Why is an NDA a problem when confidentiality is already required?
A: Because the duty runs the other way. The opinion explains that Rule 1.6 and NRS 49.095 protect the client and are held by the client; an NDA inverts that protection to benefit the lawyer and restrict the client.
Q: How does an NDA affect a client's ability to switch lawyers?
A: The opinion concludes an NDA inhibits a client or prospective client from retaining new counsel by limiting what can be disclosed about the prior lawyer's work or advice, which it treats as prejudicial to the administration of justice under Rule 8.4(d).
Q: Does an NDA raise a conflict of interest?
A: It can. The opinion concludes an NDA may create a personal-interest conflict under Rule 1.7 and undermine the lawyer's duty to give candid advice under Rule 2.1, because the agreement exists to benefit the lawyer at the client's expense.
Background and rules framework
The opinion interprets Nevada RPC 1.6 (confidentiality of information) and Nevada RPC 1.18 (duties to prospective clients), corresponding to Model Rules 1.6 and 1.18, and applies Nevada RPC 1.7 (concurrent conflicts), 2.1 (independent judgment and candid advice), 8.4(d) (conduct prejudicial to the administration of justice), and the informed-consent definition in Rule 1.0(e). It grounds the privilege analysis in NRS 49.095 and Nevada case law on the attorney-client privilege.
Citations and references
Rules of Professional Conduct:
- Nevada RPC 1.6 / Model Rule 1.6 (confidentiality of information)
- Nevada RPC 1.18 / Model Rule 1.18 (duties to prospective clients)
- Nevada RPC 1.7 / Model Rule 1.7 (concurrent conflicts of interest)
- Nevada RPC 2.1 (independent professional judgment, candid advice)
- Nevada RPC 8.4(d) (conduct prejudicial to the administration of justice)
Statutes:
- NRS 49.095 (attorney-client privilege held by the client)
Cases:
- Wynn Resorts, Ltd. v. Eighth Judicial District Court, 133 Nev. 369, 399 P.3d 334 (2017), purpose of the attorney-client privilege
- Richman v. Eighth Judicial District Court, No. 60676, 2013 WL 3357115 (Nev. May 31, 2013), duties to prospective clients under RPC 1.18(b)
Other opinions cited:
- NV Formal Op. 41 (2009): scope of the confidentiality duty
- ABA Model Rule 1.6 comments; Restatement (Third) of Agency Sec. 8.05
See also
- ABA Formal Op. 492: Obligations to Prospective Clients
- ABA Formal Op. 90-358: Protection of Information Imparted by a Prospective Client
- CA COPRAC Op. 2021-205: Duties to a Prospective Client
Source
- Landing page: https://nvbar.org/for-lawyers/ethics-discipline/ethics-opinions/
- Original PDF: https://nvbar.org/wp-content/uploads/2027.01.27-Formal-Op.-60-FINAL.pdf
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