As a criminal defense attorney in Charleston, SC, I know that the need to hire a criminal defense attorney can be rather embarrassing. As you prepare for that first meeting, you may have concerns about how much information you should provide him or her. This is not a good strategy since a criminal defense attorney needs as much information as possible to mount a successful defense. As such, a criminal defense attorney is bound by law not to discuss any information about your case with anyone but you. This concept is known as attorney-client privilege. In this article, I will explain attorney-client privilege, when it applies and for how long, and its exceptions.

What is Attorney-Client Privilege in South Carolina?

Attorney-client privilege means that any information discussed with your lawyer that is relevant to your case is not only confidential but is also subject to privilege and as such your lawyer cannot disclose or be compelled to disclose such information to third parties. This applies even to the judicial system and, subject to certain exceptions, your lawyer cannot voluntarily testify nor be compelled to testify about communications made within the context of your attorney-client relationship.

Attorney-client privilege remains in place even after the attorney-client relationship itself has ended.

When Does the Attorney-Client Privilege Apply in South Carolina?

Attorney-client privilege will apply when a client, whether an actual client or a prospective client, speaks with a lawyer for the purpose of obtaining legal advice. The lawyer must be acting in the capacity of a lawyer and not, for example, as a business advisor or a friend. Additionally, the client needs to have intended the information communicated to the lawyer to be communicated in confidence.

In most cases, it is clear that an attorney-client relationship giving rise to attorney-client privilege exists. You may have an engagement letter, or paid fees to your lawyer, for example. But what about the initial consultation between a prospective client and an attorney, especially when the attorney does not end up representing the prospective client?

Generally, any information that is disclosed to a lawyer regarding your legal issue on an initial legal consultation will be covered by attorney-client privilege, even if you do not hire the lawyer to represent you. The existence of the attorney-client privilege in such a situation means that you can find an attorney, ask legal questions, and obtain legal help without worrying about jeopardizing your legal position.

To be absolutely certain that what you disclose as a potential client will be covered by attorney-client privilege, you should discuss the issue of privilege with the lawyer first to ensure that client-attorney privilege applies before you give him or her any information which you consider confidential.

Does the Attorney-Client Privilege Continue Even After Death in South Carolina?

Yes. It has been firmly established that the attorney-client privilege survives after a person’s death. The reasoning behind this ruling is to help ensure that a person will be more willing to have frank and open discussions with their lawyers knowing that they can take those discussions with them to the grave. Because they may be concerned about a loss of reputation or civil liability that harms their family and friends, people may be unwilling to seek legal advice if they know those communications may be disclosed after they die. Thus, courts have almost uniformly held that a person’s claim to the attorney-client privilege can be asserted after that person’s death.

Will My Past Behavior be Covered Under Attorney-Client Privilege?

While a client’s intent to commit or cover up a crime can apply to remove attorney-client privilege, a client’s disclosure of past criminal or fraudulent behavior to a lawyer will likely not affect attorney-client privilege. So if a client discloses that he or she had, for example, lied during a past bankruptcy proceeding or had been involved in a robbery in the past, this communication would probably still be covered by the privilege.

Are There Attorney-Client Privilege Exceptions in South Carolina?

There are a number of exceptions to the privilege in South Carolina. According to the South Carolina Judicial Department, an attorney is not bound by attorney-client privilege:

(1) to prevent the client from committing a criminal act;

(2) to prevent reasonably certain death or substantial bodily harm;

(3) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;

(4) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;

(5) to secure legal advice about the lawyer’s compliance with these Rules;

(6) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;

(7) to comply with other law or a court order; or

(8) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.

The attorney-client privilege is a powerful concept protecting communications with your lawyer. When speaking with a lawyer, you should discuss the application and scope of attorney-client privilege to your communications so that you are clear as to whether the privilege applies before you disclose anything you want to remain confidential. As a charleston criminal attorney, I know first-hand how important attorney-client privilege is my clients. Should you have any questions regarding attorney-client privilege or to learn more, contact the Deaton Law Firm.