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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


South Carolina Legal Ethics

1.6   Rule 1.6 Confidentiality of Information

1.6:100   Comparative Analysis of South Carolina Rule

Primary SC References: SC Rule 1.6
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary:

1.6:101      Model Rule Comparison

South Carolina follows Model Rule 1.6 except that South Carolina Rule 1.6(b)(1) provides that a lawyer may reveal confidential information "to prevent the client from committing a criminal act."

The South Carolina comments follow the model rule except for the following paragraph:

Third, the lawyer may learn that a client intends prospective conduct that is criminal. As stated in paragraph (b)(1), the lawyer has professional discretion to reveal information in order to prevent such consequences. It is very difficult for a lawyer to "know" when such a heinous purpose will actually be carried out, for the client may have a change of mind. Paragraph (b)(1) was modified from the model rule version which has qualifying language to the effect that only those criminal acts which the lawyer believes are likely to result in imminent death or substantial bodily harm may be disclosed. This language was deleted in the South Carolina version to provide greater flexibility for the lawyer, similar to the flexibility present under DR 4-101 of the Code of Professional Responsibility.

Among other modifications, this paragraph deletes the following sentence found in the comments to the model rule: "The lawyer may make a disclosure in order to prevent homicide or serious bodily injury which the lawyer reasonably believes is intended by a client."

1.6:102      Model Code Comparison

The counterpart of Model Rule 1.6 is DR 4-101 of the Code of Professional Responsibility.

1.6:200   Professional Duty of Confidentiality

Primary SC References: SC Rule 1.6
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA 55:101, ALI-LGL 111-117A, Wolfram 6.1, 6.7

1.6:210      Definition of Protected Information

Recognizing that confidentiality is a fundamental element of any attorney-client relationship, the Rules of Professional Conduct generally prohibit disclosure of any information relating to a representation, unless permitted by a specific exception within the rules. See Rule 1.6. The ethical obligation of the lawyer not to disclose information should be distinguished from the evidentiary attorney-client privilege. The ethical obligation not to disclose information relating to the representation applies to a far broader range of information than merely that which may be acquired through communications that are privileged under the law of evidence.

Rule 1.6 is intentionally broad in the scope of information protected from disclosure by the lawyer. The Rule departs from the approach of old DR 4-101 of the prior Code of Professional Responsibility, which protected privileged confidences and other secrets as defined in the code. Since a secret was defined only as information gained in the professional relationship, unprivileged information gained outside of the relationship was not covered. Under Rule 1.6, no such distinction exists

All "information relating to the representation of a client" falls within the scope of Rule 1.6, whatever the source of the information and regardless of when the information is obtained. American Bar Association and South Carolina ethics advisory opinions have interpreted the scope of protected information broadly. For example, when a prospective client consults with a lawyer for the purpose of engaging the lawyer's services, a duty of confidentiality attaches to information received from the prospective client "even though the lawyer performs no legal services for the would-be client and declines the representation." ABA Formal Op. # 90-358. Also, information relating to a representation discovered after the representation has ended normally may not be disclosed without consent. See S.C. Bar Ethics Adv. Op. # 90-30.

Other examples of protected information include the contents of real estate files that relate to the representation of clients at closing. The information is protected from disclosure even to a title insuror without proper client consent. See S.C. Bar Ethics Adv. Op. # 89-03. A lawyer involved in personal litigation may not reveal through discovery in that litigation the identities of clients or the amount of work done for them, without their consent or without a valid court order requiring disclosure. S.C. Bar Ethics Adv. Op. # 90-14.

But if the lawyer is acting as guardian rather than lawyer, information is not subject to the duty of confidentiality. S.C. Bar Ethics Adv. Op. # 98-02.

1.6:220      Lawyer's Duty to Safeguard Confidential Client Information

Lawyers may ethically use email in connection with client matters because a reasonable expectation of confidentiality exists with regard to such methods of communication. ABA Formal Opinion # 99-413; S.C. Bar Ethics Adv. Op. # 97-08. [See also 1.6:210].

1.6:230      Lawyer Self-Dealing in Confidential Information [see also 1.8:300]

[The discussion of this topic has not yet been written.]

1.6:240      Use or Disclosure of Confidential Information of Co-Clients

[The discussion of this topic has not yet been written.]

1.6:250      Information Imparted in Lawyer Counseling Programs

According to Rule 8.3(d), any inquiries or information received by the South Carolina Lawyers Caring about Lawyers Committee, or any equivalent bar committee, enjoys the protections of the attorney-client privilege and "shall not be disclosed to the disciplinary authority without the written permission of the lawyer receiving assistance." Inquiries or information received by the South Carolina Bar Law Office Management Assistance Program, or equivalent bar association program, likewise enjoys such protections. This portion of Rule 8.3 encourages lawyers to seek assistance from certain bar organizations without the fear of being reported for committing a rule violation.

1.6:260      Information Learned Prior to Becoming a Lawyer

[The discussion of this topic has not yet been written.]

1.6:300   Exceptions to Duty of Confidentiality--In General

Primary SC References: SC Rule 1.6
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA 55:101, ALI-LGL 111-117A, Wolfram 6.4, 6.7

1.6:310      Disclosure to Advance Client Interests or with Client Consent

A client may consent to disclosure by the lawyer of information that otherwise would be protected under Rule 1.6. The consent may be either express consent given after consultation or implicit consent derived from the nature of the representation. Rule 1.6(a). "A lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation," unless the client specifically directs otherwise "or special circumstances limit that authority." Rule 1.6, cmt. Examples of disclosures normally permitted by implicit consent include disclosures to other lawyers in the same firm and disclosures made to facilitate a satisfactory result in a negotiation. Id. There is not implicit consent, however, for a lawyer to disclose to a judge the limits of the lawyer's settlement authority. While the lawyer may not mislead the judge, the lawyer should not reveal that information without informed client consent. ABA Formal Op. # 93-370.

An advisory opinion issued under the prior code concluded that when a client and the lawyer have both promised to protect the interests of a medical care provider out of the proceeds of any recovery, there is no breach of confidentiality if the lawyer later notifies the provider of the recovery since the client implicitly consented to notification by entering into the agreement. S.C. Bar Ethics Adv. Op. # 81-14. One advisory opinion issued under the new rules concluded that, at least when the lawyer was not a party to the assignment agreement, the lawyer could not reveal to a third-party the fact of a recovery without the client's consent. S.C. Bar Ethics Adv. Op. # 91-10. A subsequent opinion, however, appears to adopt a different view, suggesting that there may even be a duty to notify the assignee of a recovery. In S.C. Bar Ethics Adv. Op. # 93-14, the committee concluded that "it is now the better practice, if a dispute arises, to notify the creditor and hold the money until the dispute is resolved." See also In re Jones, 313 S.C. 9, 437 S.E.2d 10 (1993).

There may be situations in which the lawyer ought to encourage a client to consent to disclosure. For example, when there is alleged misconduct by another lawyer of which the client is aware, the client ought to be encouraged to consent to a report of the misconduct if there would be no material prejudice to the client. See S.C. Bar Ethics Adv. Op. # 92-01; Rule 8.3, cmt. If the client does not consent, however, there is no duty to report information protected by Rule 1.6 regarding another lawyer's misconduct. Rule 8.3(c).

The South Carolina Ethics Advisory Committee has opined that a law firm, which represents insureds can submit its bills directly to a third-party audit company with the informed consent of the insurer and the insureds. (The company would send these bills to the audit company in any event.) However, the committee advised that the law firm could not ethically release information about billings to other insurance companies without obtaining the specific informed consent of those clients, which the committee believed would be very difficult to do. S.C. Bar Ethics Adv. Op. # 97-22.

On the confidentiality of client information in connection with the lawyer's preparation of an evaluation for the use by a third party in a matter affecting the client, see Rule 2.3.

1.6:320      Disclosure When Required by Law or Court Order

Rule 1.6 does not expressly permit disclosure when required by law or by court order as did prior DR 4-101(C). However, the comment to the rule states clearly that a "lawyer must comply with the final orders of a court or other tribunal of competent jurisdiction requiring the lawyer to give information about the client." Rule 1.6, cmt. This also is the view suggested by S.C. Bar Ethics Adv. Op. # 90-14.

A formal opinion issued by the ABA Standing Committee on Ethics and Professional Responsibility suggests, however, that, before complying with a subpoena or court order directing the lawyer to turn over files relating to the representation of a client, the lawyer has an ethical obligation to attempt to limit the subpoena or court order to protect confidential information. The lawyer may comply with the order only if the effort to limit production fails and the lawyer is ordered specifically to turn over protected documents. ABA Formal Op. # 94-385. See also S.C. Bar Ethics Adv. Op. # 98-23 (when IRS requests that attorney, who represented client in a closing, provide it with copies of closing documents and client's checks, attorney should: (1) inform client of IRS inquiry, (2) reveal information to IRS only after client gives informed consent but if client does not consent, tell IRS that he cannot comply with request without court order, and (3) inform client that attorney may be obligated to reveal information if required to do so by court order).

1.6:330      Disclosure in Lawyer's Self-Defense

Rule 1.6(b)(2) permits a lawyer to disclose protected information in disputes between the lawyer and client and in defense of certain other claims against the lawyer. A lawyer, for example, who subsequently sues a client in order to collect a fee or is sued by the client for professional malpractice may use information relating to the representation in the subsequent dispute. However, a lawyer may not threaten to reveal confidences in order to force payment of a disputed bill. See In re Strobel, 271 S.C. 61, 244 S.E.2d 537 (1978).

Also, if a civil claim or criminal charge is brought against the lawyer stemming from conduct involving the client, the lawyer may use protected information to the extent reasonably necessary to defend against the claim or charge. The right of the lawyer to respond arises when the assertion of complicity is made and the lawyer is not required "to await the commencement of an action or proceeding." Rule 1.6, cmt. The comment further suggests that appropriate protective orders or similar measures should be used to limit the persons having access to disclosed information. Id. Similar rights to disclose apply in any other proceeding regarding the representation of the client, including a disciplinary proceeding against the lawyer. See Rule 1.6(b).

1.6:340      Disclosure in Fee Dispute

During a fee dispute, a lawyer who is entitled to a fee may disclose confidential client information to the extent the lawyer reasonably believes necessary. See Rule 1.6(b)(2); see also Rule 1.6, cmt. 19 ("If a lawyer is charged with wrongdoing in which the client's conduct is implicated, the rule of confidentiality should not prevent the lawyer from defending against the charge . . . . A lawyer entitled to a fee is permitted . . . to prove the services rendered in an action to collect it.")

1.6:350      Disclosure to Prevent a Crime

Rule 1.6(b) permits a lawyer to reveal otherwise protected information to the extent that the lawyer reasonably believes is necessary to prevent a client from committing a criminal act. The South Carolina Supreme Court did not adopt language of the model rule that would limit disclosure to situations in which there is a likelihood of imminent death or substantial bodily harm. Thus, in South Carolina a lawyer apparently may disclose otherwise confidential information to the extent necessary to prevent a crime against property or, for example, a plan by a noncustodial parent to criminally abduct a child even though no direct physical harm is likely to come to the child. See S.C. Bar Ethics Adv. Op. # 83-11 (advisory opinion issued under prior law regarding disclosure of client's intent to remove a child from the jurisdiction contrary to court order).

Rule 1.6(b) does not impose a duty upon the lawyer to disclose information in this circumstance, but merely permits the disclosure. The lawyer should consider whether there is any other legal obligation to disclose knowledge of a potential crime. If there is no legal obligation to disclose, the comment to Rule 1.6 suggests that, in deciding whether to disclose when disclosure is permitted, the lawyer should consider the lawyer's relationship with the client and with potential victims, the extent of the lawyer's own "involvement in the transaction," and any extenuating circumstances that may exist. Rule 1.6, cmt.

1.6:360      Disclosure to Prevent Death or Serious Bodily Injury

A lawyer may (and perhaps should) reveal confidential information to the extent necessary to prevent a client's suicide, particularly when there is the possibility of harm to others. S.C. Bar Ethics Adv. Op. # 99-12.

1.6:370      Disclosure to Prevent Financial Loss

The South Carolina rules do not directly permit lawyers to reveal confidential information to prevent financial loss. However, Rule 1.6(b)(1) provides lawyers with discretion to reveal confidential information to prevent the client from committing a crime. To the extent that a client plans to engage in criminal conduct that would involve financial loss to others, lawyers could reveal confidential information.

1.6:380      Physical Evidence of Client Crime [see 3.4:210]

An attorney may not take possession of evidence if the evidence would constitute contraband or the lawyer's possession would otherwise be illegal. See S.C. Ethics Adv. Op. # 89-02, discussing In re Ryder, 263 F. Supp. 360 at 368 (E.D. Va. 1967), aff'd, 381 F.2d 713 (4th Cir. 1967) and related cases.

1.6:390      Confidentiality and Conflict of Interest

Rule 1.7, cmt. 5 states that in certain cases involving conflicts of interest, confidentiality rules may make it impossible for a lawyer to make the disclosure necessary to obtain informed consent; see also Bankers Trust of South Carolina v. Bruce, 283 S.C. 408, 323 S.E.2d 523 (Ct. App. 1984) (see 1.7:240) (commenting upon a lawyer's duties to protect confidential information when attempting to obtain consent from client to waive a conflict of interest).

In S.C. Bar Ethics Adv. Op. # 81-17, the Ethics Advisory Committee noted that a law firm may not defend a hospital in a medical malpractice suit and simultaneously represent several doctors in a suit against the same hospital involving a constitutional issue because of the potential improper use of confidences and conflicts of interest. Even though the subject matter between the two suits differed, the committee still cautioned against this dual representation. The committee stated that an attorney must preserve the confidences of a client.

1.6:395      Relationship with Other Rules

A lawyer also may not allow his or her services to be used to further a fraudulent undertaking by the client. See Rule 1.2(d). Therefore, under Rule 1.16(a), the lawyer may be required to withdraw, rather than assist in such an enterprise. While the lawyer may not, under Rule 1.6, be permitted to disclose protected information regarding the prospective fraud, at least if the act is not a criminal violation, the comment to Rule 1.6 suggests that the lawyer is not prohibited from announcing the withdrawal. Rule 1.6, cmt. Perhaps more significantly, since the lawyer should not allow his or her professional services to be used to further a fraud, the lawyer may disclaim any opinions or other documents as may be appropriate. Id. This so-called "noisy withdrawal" may well alert others that a problem exists, without disclosing any specific protected information. See ABA Formal Op. # 92-366 (majority of committee would allow noisy withdrawal in certain situations, while dissenters would not).

A lawyer also normally is not permitted by Rule 1.6(b) to disclose past frauds or criminal acts of the client. Therefore, a lawyer may not reveal information that the client committed a crime during a transaction. See S.C. Bar Ethics Adv. Op. # 90-30. However, a different rule applies if a fraudulent or criminal act occurs before a tribunal. In that case, the lawyer must disclose any facts discovered prior to the end of a proceeding to the extent that disclosure is "necessary to avoid assisting a criminal or fraudulent act by the client." Rule 3.3(a)(2). The duty under Rule 3.3 expressly supersedes the duty of confidentiality under Rule 1.6. Rule 3.3(c).

During the course of a representation, the deteriorating mental or physical condition of the client eventually may necessitate the appointment of a guardian or conservator. Rule 1.14 permits the lawyer to seek appropriate protection for the client, although the disclosure of information regarding the client's disability may be damaging to the client. However, so as to prevent a premature disclosure damaging to the client, Rule 1.14 permits a lawyer to seek the appointment of a guardian or take other action to protect a client "only when the lawyer reasonably believes the client cannot adequately act in the client's own interest." Rule 1.14(b).

1.6:400   Attorney-Client Privilege

Primary SC References: SC Rule 1.6
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA 55:301, ALI-LGL 118-128, Wolfram 6.3-6.5

1.6:410      Privileged Communications

Communications are protected by an attorney-client privilege only if an attorney-client relationship is first proven and the communications were intended to be confidential: "In order to establish the privilege, it must be shown that the relationship between the parties was that of attorney and client and that the communications were of a confidential nature. In general, the burden of establishing the privilege rests upon the party asserting it." State v. Love, 275 S.C. 55, 59 , 271 S.E.2d 110, 112 (1980). At the time of the communication, the lawyer must be acting as a legal advisor. Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44 (Ct. App. 1984).

The privilege may extend to information beyond the specific communication between lawyer and client. In State v. Adams, 277 S.C. 115, 283 S.E.2d 582 (1981), overruled on other grounds, State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991), the prosecution in a criminal case examined the defendant's former counsel as to the lawyer's opinion of whether a confession had been voluntarily given. The opinion was based in part upon the lawyer's observation of the defendant during a confidential meeting. The court held that eliciting an opinion based upon the lawyer's observation of the client during a confidential conversation was a violation of the attorney-client privilege. "We believe that the spirit of this policy dictates that not only is the conversation protected but the entire setting of the confidential conference must be protected as well. To lend privilege to the words spoken but to allow disclosure of professional impressions drawn from the manner of their delivery all but destroys the substance of the privilege." 277 S.C. at 122, 283 S.E.2d at 586.

1.6:420      Privileged Persons

The privilege applies to communications between lawyer and client, but it may also extend to certain confidential communications between the client and a nonlawyer employed to aid in the legal representation. The court has extended the protections of the attorney-client privilege to certain confidential communications between a client and a psychiatrist hired to aid in preparation of the client's case. State v. Hitopoulus, 279 S.C. 549, 309 S.E.2d 747 (1983). A balancing test is used to determine whether communications with a nonlawyer are privileged. The court will weigh the lawyer's need for the assistance of the nonlawyer to represent the client effectively against the increased potential for inaccuracy if the trier of fact is deprived of a valuable witness. In State v. Thompson, 329 S.C. 72, 495 S.E.2d 437 (1998), the court extended the privilege to communications between the client and a psychiatrist hired by the defense to evaluate the client's eligibility for a sex offender program, even though the doctor's report was provided to the prosecution. The court focused on the fact that the communications occurred to enable the psychiatrist to assist the client's lawyer in effectively negotiating a plea agreement. The court, however, has distinguished between psychiatrists hired solely to aid in jury selection and those hired to establish an insanity defense, finding that in the former case, the attorney-client privilege would not apply. State v. Smith, 286 S.C. 406, 334 S.E.2d 277 (1985), overruled on other grounds, State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991). However, the privilege does not extend to communications between an inmate and a "jailhouse lawyer." State v. Owens, 309 S.C. 402, 424 S.E.2d 473 (1992).

1.6:430      Communications "Made in Confidence"

To be privileged, a communication "must relate to a fact of which the attorney was informed by his client without the presence of strangers for the purpose of securing primarily either an opinion on law or legal services or assistance in some legal proceeding." Marshall v. Marshall, 282 S.C. 534, 538, 320 S.E.2d 44, 47 (Ct. App. 1984). Cf. United States v. (Under Seal), 748 F.2d 871, 874 (4th Cir. 1984) (for communication to be subject to attorney-client privilege, communication must be confidential, i.e. not intended to be disclosed to third parties; Virginia law). Even if certain communications between the client and a witness might be privileged, the opinions of a psychiatrist based upon observations of the client in open court are not confidential so as to be protected. State v. Smith, 286 S.C. 406, 334 S.E.2d 277 (1985), overruled on other grounds, State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991).

1.6:440      Communications from Lawyer to Client

The attorney-client privilege attaches to communications by the client to the lawyer and to communications originating from the lawyer, directed to the client. Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44 (Ct. App. 1984). The privilege applies "only if communication is based on confidential information provided by the client." Id. at 539, 320 S.E.2d at 47.

1.6:450      Client Identity, Whereabouts, and Fee Arrangements

The fact that a potential client sought the services of a particular lawyer is not privileged, at least when no attorney-client relationship resulted from the contact. State v. Conyers, 268 S.C. 276, 233 S.E.2d 95 (1977). Although client identity is not normally privileged, the court has recognized that in exceptional circumstances a privilege may attach to that information. McDonald v. Berry, 243 S.C. 453, 134 S.E.2d 392 (1964). In dicta, the court has suggested a different rule for a client address given to the lawyer in confidence, indicating that the address would be privileged. The privilege, however, may be limited. "[A]s a general rule, an address given confidentially by a client to an attorney while consulting him in a professional capacity is a privileged communication and an attorney will not be compelled to disclose it when no sufficient ground is shown for the necessity therefor." Id. at 457, 134 S.E.2d at 394.

1.6:460      Legal Assistance as Object of Communication

Confidential communications are privileged only if they occur in connection with the delivery of legal services. See Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44 (Ct. App. 1984). On the application of the privilege to communication to a psychiatrist employed by the defense, see 1.6:420.

1.6:470      Privilege for Organizational Clients

[The discussion of this topic has not yet been written.]

1.6:475      Privilege for Governmental Clients

In Ross v. Medical University of South Carolina, 317 S.C. 377, 453 S.E.2d 880 (1994), the court refused to extend the privilege to communications between university counsel and a university officer acting in a judicial capacity in a faculty termination proceeding. The university general counsel was "acting in a representative capacity" for the university prosecuting the case against the faculty member "and not as counsel for Vice President" who was hearing the case as a judicial officer in the administrative proceeding.

The court has also held that appraisal reports prepared by experts for the state highway department and the methods used in making the appraisals are discoverable. South Carolina State Highway Dept. v. Booker, 260 S.C. 245, 195 S.E.2d 615 (1973).

1.6:480      Privilege of Co-Clients

An established exception to the attorney-client privilege is that the privilege does not apply to any subsequent dispute between jointly represented clients. See Duplan Corp. v. Deering Milliken, Inc., 397 F. Supp. 1146, 1174 (D.S.C. 1974). The comment to Rule 2.2 of the South Carolina Rules of Professional Conduct states: "With regard to the attorney-client privilege, the prevailing rule is that as between commonly represented clients the privilege does not attach."

1.6:490      Common-Interest Arrangements

See John Freeman, Don't Talk to Strangers, S.C. LAW., Nov.-Dec. 1997, at 11 (discussing common-interest privilege in context of investigation of first lady Hillary Clinton); John Freeman, The Common Interest Rule, S.C. LAW., Jan.-Feb. 1995, at 11 (discussing duty of confidentiality that bars lawyers from "disclosing confidences picked up or through some other lawyer's client").

1.6:495      Duration of Attorney-Client Privilege

The attorney-client privilege extends beyond the death of the client. See State v. Doster, 276 S.C. 647, 284 S.E.2d 218 (1981); South Carolina State Highway Dept. v. Booker, 260 S.C. 245, 195 S.E.2d 615 (1973).

1.6:500   Waiver of Attorney-Client Privilege

Primary SC References: SC Rule 1.6
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA 55:401, ALI-LGL 128-130, Wolfram 6.4

1.6:510      Waiver by Agreement, Disclaimer, or Failure to Object

[The discussion of this topic has not yet been written.]

1.6:520      Waiver by Subsequent Disclosure

If a client reveals materials that are subject to the attorney-client privilege to a third party, the privilege is waived as to all communications between the attorney and client relating to the same subject matter. In Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44 (Ct. App. 1984), the court stated:

Any voluntary disclosure by a client to a third party waives the attorney-client privilege not only as to the specific communication disclosed but also to all communications between the same attorney and the same client on the same subject. Id. at 538, 320 S.E.2d 46-47.

Voluntary disclosure of privileged documents during discovery also constitutes a waiver of the privilege as to the entire subject matter of the documents. Duplan Corp. v. Deering Milliken, Inc., 397 F. Supp. 1146, 1161 (D.S.C. 1974).

A privilege attaching to statements made by a client to a psychiatrist for purposes of preparing an evaluation to be given to the other party is not necessarily waived by the delivery of the report. In State v. Thompson, 329 S.C. 72, 495 S.E.2d 437 (1998), the state argued that the privilege had been implicitly waived because the client knew that the report would be disclosed. Evidence of an implied waiver, however, must be "distinct and unequivocal." The necessary evidence to prove waiver in that case was lacking because it was reasonable for the client to expect that, while the report would be revealed, the client's actual statements would not be revealed.

The court has not ruled directly on the question of whether inadvertent disclosure of a privileged document waives the privilege. In Hansen v. DHL Laboratories, Inc., 316 S.C. 505, 450 S.E.2d 624 (Ct. App. 1994), the issue was raised, but the court ruled that the inadvertently produced document was admissible because it proposed fraudulent conduct. On the issue of whether inadvertent disclosure of material constitutes a waiver of the attorney-client privilege, see John Freeman, Inadvertent Disclosure of Data to the Other Side, Part I, S.C. LAW., Nov.-Dec. 1996, at 10; John Freeman, Inadvertent Disclosure of Data to the Other Side, Part II, S.C. LAW., Jan.-Feb. 1997, at 10.

1.6:530      Waiver by Putting Assistance or Communication in Issue

In State v. Adams, 277 S.C. 115, 283 S.E.2d 582 (1981), overruled on other grounds, State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991), the state sought to examine the defendant's former counsel about his observations of the defendant during a confidential conversation. The state's purpose was to dispute the defendant's claim that a confession had been coerced. The state argued that the privilege had been waived by the client "disputing the propriety of" the lawyer's representation. The court rejected the waiver argument noting that the defense case had not yet been presented when the issue arose at trial. Thus, the state "clearly delved into the attorney-client relationship in this trial before Adams [the defendant] himself made any disclosures." 277 S.C. at 122, 283 S.E.2d at 586.

1.6:600   Exceptions to Attorney-Client Privilege

Primary SC References: SC Rule 1.6
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA 55:901 et seq., ALI-LGL 131-135, Wolfram 6.4

1.6:610      Exception for Disputes Concerning Decedent's Disposition of Property

[The discussion of this topic has not yet been written.]

1.6:620      Exception for Client Crime or Fraud

The attorney-client privilege "does not extend to communications in furtherance of criminal tortious or fraudulent conduct."proposed a fraudulent alteration of evidence."

1.6:630      Exception for Lawyer Self-Protection

[The discussion of this topic has not yet been written.]

1.6:640      Exception for Fiduciary-Lawyer Communications

[The discussion of this topic has not yet been written.]

1.6:650      Exception for Organizational Fiduciaries

[The discussion of this topic has not yet been written.]

1.6:660      Invoking the Privilege and Its Exceptions

"The privilege belongs to the client and not the attorney, and may be waived by the client." State v. Love, 275 S.C. 55, 59, 271 S.E.2d 110, 112 (1980). After the death of a client, it is appropriate for the client's lawyer to assert the privilege on behalf of the deceased client. State v. Doster, 276 S.C. 647, 284 S.E.2d 218 (1981). "[T]he burden of establishing the privilege rests upon the party asserting it." State v. Love, 275 S.C. 55, 59, 271 S.E.2d 110, 112 (1980).

1.6:700   Lawyer Work-Product Immunity

Primary SC References: SC Rule 1.6
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA 91:2201, ALI-LGL 136-142, Wolfram 6.6

1.6:710      Work-Product Immunity

South Carolina recognizes the work product doctrine as articulated by the Supreme Court in Hickman v. Taylor, 329 U.S. 495 (1947). See South Carolina State Highway Dept. v. Booker, 260 S.C. 245, 195 S.E.2d 615 (1973). The doctrine does not apply, however, to materials submitted to expert witnesses on which those witnesses base their opinions. See id. Compare Johnston v. Ward, 288 S.C. 603, 344 S.E.2d 166 (1986), overruled on other grounds, Spahn v. Town of Port Royal, 330 S.C. 168, 499 S.E.2d 205 (1998) (patient who was given access to or provided with all relevant information relied upon by physician in forming his expert opinion was not entitled to examine other documents compiled by insurance adjuster and submitted to medical expert, as they were not relevant).

1.6:720      Ordinary Work Product

[The discussion of this topic has not yet been written.]

1.6:730      Opinion Work Product

[The discussion of this topic has not yet been written.]

1.6:740      Invoking Work-Product Immunity and Its Exceptions

[The discussion of this topic has not yet been written.]

1.6:750      Waiver of Work-Product Immunity by Voluntary Acts

[The discussion of this topic has not yet been written.]

1.6:760      Waiver of Work-Product Immunity by Use in Litigation

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1.6:770      Exception for Crime or Fraud

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