Attorney-Client Privilege Attorney-Client Privilege & Work Product Protection in South Carolina
By Kara Kennedy
People seek legal representation for various reasons, but they all have one common expectation: what they divulge to their lawyer in trust will be kept confidential.
Confidentiality is perhaps the hallmark of the client-lawyer relationship.Under the Rules of Professional Conduct, a lawyer must not reveal information relating to the representation of a client unless the client gives informed consent or the disclosure is otherwise permitted or required.(1) The law gives effect to this confidentiality principle through the attorney-client privilege,the work product doctrine, and the rules governing attorney ethics.
So what happens when a lawyer is called as a witness or otherwise required to produce evidence concerning a client? What happens when a client himself shares protected information with a spouse? Here we detail how South Carolina courts apply the attorney-client privilege and work product protection in judicial and other proceedings.
The Attorney-Client Privilege: Application and Protection
The attorney-client privilege has long been recognized in the state of South Carolina. When raised, the privilege excludes from evidence confidential communications of a professional nature between an attorney and her client.(2) This means that an opposing party cannot obtain emails between a lawyer and her client, or that an opposing counsel cannot cross-examine the client on matters discussed between the client and his lawyer.
In order to protect a communication on the grounds of attorney-client privilege, it must appear that the attorney was acting, at the time of the communication, as a legal advisor, and that the communication was of a confidential nature.(3)
Specifically, “the communication involved 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.”(4)
The attorney-client privilege also applies to communications originating from the lawyer (5), but only if that communication is based on confidential information provided by the client.(6)
Who does the privilege protect?
The attorney-client privilege protects the client and is determined from the client’s point of view. It also prevents any other person from disclosing confidential communications that the client made to a counsel relative to a legal matter.(7) Simply put, the privilege belongs to the client, not to the lawyer or a third party.
Ordinarily, the attorney-client privilege does not protect communications with non-clients.(8)
But who constitutes a “client”? During conversations with a lawyer, when does a “person” become a “client?” Our courts have explained: “[T]o obtain the status of a client, the person must communicate in confidence with an attorney for the purpose of obtaining legal advice. The advice or assistance must be sought with a view to employing the attorney professionally whether or not actual employment occurs.”(9)
To further protect clients, courts may also extend the privilege to agents of the attorney. For example, the South Carolina Supreme Court has held that the attorney-client privilege extends to communications between a client and a psychiatrist who was retained to aid in the preparation of the client's case.(10)
To determine whether the privilege extends to communications between a client and agents of the lawyer, the court balances two factors: (1) the lawyer’s need for the non-lawyer’s assistance to effectively represent his client, and (2) the increased potential for inaccuracy in the search for truth as the trier of fact is deprived of valuable witnesses.(11) Still, before reaching this balancing test, the court must ascertain whether the communication is confidential in nature.(12)
How is attorney-client privilege lost?
Waiver is the principle means by which the attorney-client privilege may be lost. Only the client can waive the privilege,(13) and the waiver must be “distinct and unequivocal,” — that is, merely taking the witness stand will not constitute a waiver of the privilege.(14)
“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.”(15) It’s important to note that family members of a client are included in this definition of “third party,” and disclosure to them could waive the privilege if they are not also clients of the attorney.(16)
This distinction was determined by the case Marshall v. Marshall, which suggests that a client’s inclusion of family members in otherwise privileged communications waives the attorney-client privilege.(17)
The Marshall v. Marshall Case and Unintentional Waivers
The Marshall case involved a divorce action where both parties — Mr. Marshall and Mrs. Marshall — sought custody of their two minor children.
Mrs. Marshall inadvertently left a letter from her attorney, addressed to her, in Mr. Marshall's pickup truck.(18) The parties were separated at the time. In addition, Mrs. Marshall’s attorney routinely had sent copies of his correspondence with Mrs. Marshall to her father, Mr. Charles Johnson, who was the surety for the payment of his daughter's attorney fees.(19) At the trial, the judge refused to allow any of the attorney’s letters to Mrs. Marshall into evidence on the basis of the attorney-client privilege.(20) The trial court awarded custody of the children to Mrs. Marshall, and Mr. Marshall appealed.
On appeal, Mr. Marshall argued the letters from Mrs. Marshall’s attorney were admissible because the attorney-client privilege had been waived since the letters had been published to third parties: him and Mr. Johnson.(21) He also claimed the letters to Mrs. Marshall from her attorney were relevant to the issue of child custody.(22) The appellate court held that Mrs. Marshall did not waive the privilege by mistakenly leaving one of the letters in Mr. Marshall’s truck; however, the court did find that “the copies of correspondence sent by Mrs. Marshall’s attorney to her father” presented “a different question.”(23)
Answering that question required determining who counted as a “client.” To conclude that the attorney-client privilege was not waived by the disclosure to Mrs. Marshall’s father, the court first had to determine if Mr. Johnson became a client as a result of guaranteeing payment of his daughter’s attorney’s fees.(24) The court explained that a person attains the status of “client” when that person seeks legal advice or assistance from the attorney with a view to employing him professionally, whether or not actual employment results.(25) Under that definition, Mr. Johnson was not a client of his daughter’s attorney, for he did not seek legal advice or assistance, nor did he communicate in confidence with the attorney for the purpose of obtaining advice or with the view of employing him professionally.(26) The court stated, “Mrs. Marshall’s attorney was acting only as an informant of the current state of Mrs. Marshall’s lawsuit in writing to Mr. Johnson.”(27)
The court then examined the letter found by Mr. Marshall in his truck, and found that there was nothing in the letter that would reflect on the custody determination; therefore, while the attorney-client privilege may have been waived, it was still inadmissible on relevance grounds.(28)
This case shows us is that you must take precaution with legal case-related matters shared with anyone aside from your lawyer. While family members may be close to you and have an interest in the outcome of litigation, disclosure of privileged communications would likely be deemed to waive the attorney-client privilege as to all communications on the same subject.
When privileged communications are disclosed to a family member, the court must then decide whether the family member also became a client of the attorney. If they did not, as in Marshall, the information contained in the communication could be admissible in evidence if it is relevant.
What information is not protected by the privilege?
Not every communication within the attorney-client relationship is privileged.(29) In South Carolina, the privilege does not extend to communications in furtherance of criminal, tortious, or fraudulent conduct.(30) Moreover, Rule of Professional Conduct 1.6 allows a lawyer to reveal information relating to the representation of a client if the lawyer believes it is necessary to prevent reasonably certain death or substantial bodily harm or to comply with a court order. In addition, a lawyer can disclose confidential client information to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.(31)
In sum, the attorney-client privilege is nearly absolute in its protection of communications between counsel and client. The client may waive the privilege intentionally or inadvertently by disclosing the protected information to third parties. If waived, all privileged-matter between the client and counsel becomes discoverable (if relevant). If the privilege is not waived, it will survive even the client’s death.(32)
The Work Product Doctrine
Similar to the attorney-client privilege, the work product doctrine strives to protect representation-related information from being disclosed to an opposing party. The doctrine’s purpose is to shield from discovery those documents prepared in anticipation of litigation — that is, unless a substantial need can be shown by the requesting party.(33)
This doctrine can be found in South Carolina Rule of Civil Procedure 26(b)(3),(34) and its federal counterpart, Federal Rule of Civil Procedure 26(b)(3).
The jurisprudence of Rule 26(b)(3) divides “work product” into two parts: one is absolutely immune from discovery (or “pure”); the other only qualifiedly immune.(35) The pure work product of an attorney insofar as it involves mental impressions, conclusions, opinions, or legal theories concerning the litigation is absolutely immune to the same extent as an attorney-client communication.(36) This is true regardless of whether the material was prepared by the attorney or by a representative of the party.(37) All other documents and tangible things prepared in anticipation of litigation or for trial may be discovered, but only on a showing of “substantial need.”(38)
To resolve the question of whether matters are immune from discovery because of the work product doctrine, courts first must analyze: 1) whether the documents or tangible things were prepared in anticipation of litigation or for trial, and 2) whether the requesting party has demonstrated a substantial need for materials other than legal opinion or theory.
What materials are prepared “in anticipation of litigation?”
Generally, in determining whether a document has been prepared “in anticipation of litigation,” courts look to whether the document was prepared because of the prospect of litigation.(39) Courts recognize that litigation is an ever-present possibility in American life, and it is more often the case than not that events are documented with the general possibility of litigation in mind.(40) Nonetheless, the mere fact that litigation ultimately results does not, by itself, shield materials with work product immunity.(41) Instead, the preparer of a document must face an actual claim or a potential claim following an event or series of events that reasonably could result in litigation.(42)
Courts have held that materials prepared in the ordinary course of business, pursuant to regulatory requirements, or for other, non-litigation purposes are not documents prepared in anticipation of litigation within the meaning of the doctrine.(43)
For example, one could expect hospital personnel to conduct an investigation following a surgical mishap, not only out of concern for potential litigation, but also to prevent future incidents and to improve hospital safety. In that scenario, a court must determine the driving force behind the preparation of each requested document to ascertain whether it is possibly immune under the work product doctrine.(44)
When does a requesting party have “substantial need” for the information?
Even when documents and tangible things are prepared in anticipation of litigation, they may be discoverable on a showing of “substantial need” (assuming they do not involve the mental impressions, conclusions, opinions, or legal theories concerning the litigation). The documents falling within this classification are clothed with a qualified immunity that is grounded on the proprietary aspect of the work.(45) Accordingly, the “substantial need” requirement is designed to prevent an adverse party from “riding to court on the enterprise of the other.”(46) Substantial need, then, is established by showing the requested document’s relevance and significance to the issues being litigated and the unavailability of the information in the documents from other sources.(47)
Take for example the case Nat'l Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 985 (4th Cir. 1992) as instructive. On April 4, 1990, a fire broke out in a GE plastics plant located in West Virginia, at a location in the plant that was being renovated by Murray Sheet Metal Company. Although the direct fire damage was minor, extensive polychlorinated biphenyl (PCB) contamination was discovered in the area, causing widespread damage and cleanup costs in the millions of dollars. The insurance company providing coverage to GE for the plant undertook to pay the losses, including cleanup costs, and instituted suit against National Union Fire Insurance Company for reimbursement under a reinsurance agreement. National Union resisted payment because it believed that the PCB contamination was not caused by the fire but rather was a preexisting condition at the site, and was therefore not covered by its insurance.
Shortly after the fire, Murray Sheet Metal Company began an investigation into the circumstances of the fire and the PCB contamination. With its own employees, it gathered data concerning the PCBs, conducted medical tests of its employees, and obtained statements from Murray employees who worked at the plant. The two insurance companies subsequently filed suit to resolve the proper apportionment of losses occasioned by the fire. National Union issued a subpoena to the custodian of records of Murray Sheet Metal Company, requesting that it produce documentation relating to the fire and Murray’s investigation of it. Murray refused to produce twenty-six of the requested documents, contending, among other things, that the documents constituted work product. National Union then moved to compel production of the documents. The district court denied the motion solely based on Murray's description of them, without reviewing the documents. National Union appealed to the Fourth Circuit.
The Fourth Circuit noted that several of the documents were written witness statements taken by Murray's safety director and others on April 5, 1990, one day after the fire. Because the statements were taken by persons charged with safety responsibilities, the Murray Court questioned whether the documents were prepared in anticipation of litigation or for trial. The court assumed they were and found they did not contain opinions and trial strategies, so it then analyzed whether National Union had demonstrated a substantial need for their production.
The court observed that witnesses’ statements taken immediately after an accident and involving a material issue in a lawsuit arising out of that accident constitute “unique catalysts in the search for truth” in the judicial process. Where a party seeking their discovery was disabled from making his own investigation at the time, substantial need exists to warrant discovery.(48)
The Murray Court then addressed a second set of documents authored by a Murray employee whose position was not specified.(49) The court acknowledged that “work product need not be the direct product of an attorney,” but found it telling that the employee prepared many of the documents before ever contacting counsel or the insurance company.(50) Thus, the court doubted whether they were prepared because of litigation. If they were not prepared in anticipation of litigation, they would be discoverable. If they were found to be prepared in anticipation of litigation, the court would have to decide whether the requesting party demonstrated a substantial need for them.
In sum, to answer whether the work product doctrine grants a document immunity from discovery, the court must determine, from an examination of the documents or their circumstances, whether they were prepared in anticipation of litigation or for trial.(51) If so and if the documents embody opinions and theories about the litigation, discovery is refused without further inquiry.(52) If opinions and theories about the litigation comprise only a portion of a document otherwise discoverable, the court may require production of a redacted copy.(53) With regard to other documents falling within the scope of the doctrine, the court must determine whether the requesting party has a substantial need for them, taking into account their relevance and importance and the availability of the facts from other sources.(54)
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The attorney-client privilege and work product doctrine are useful weapons in a client’s arsenal. A client can rest assured that matters pertaining to his representation are safe from disclosure to an opposing side, as long as the appropriate precautions are taken not to waive the privileges.
At Duffy & Young, we take your trust seriously. We can provide you the legal information you need on attorney-client privilege, the work product doctrine, and more.
1. Rule 1.6, RPC, Rule 407, SCACR. This Rule provides:
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (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; or (7) to comply with other law or a court order.
2. Drayton v. Industrial Life & Health Ins. Co., 31 S.E.2d 148, 152 (S.C. 1944) (emphasis added). Generally, the party asserting the privilege must raise it.
3. Marshall v. Marshall, 320 S.E.2d 44, 47 (S.C. Ct. App. 1984)(citing State v. Love, 271 S.E.2d 110, 112 (S.C. 1980).
4. Floyd v. Floyd, 615 S.E.2d 465, 483 (S.C. 2005)(citing Marshall, 320 S.E.2d at 47).
5. Id. at 484.
7. Id. (citing Ross v. Medical University of South Carolina, 453 S.E.2d 880, 884 (S.C. 1994)).
8. See Rule 1.2, RPC, Rule 407, SCACR.
9. Crawford v. Henderson, 589 S.E.2d 204, 207-208 (S.C. 2003) (internal citations omitted).
10. State v. Hitopoulus 309 S.E.2d 747, 749 (S.C. 1983).
11. Id. at 748.
12. See Cloniger v. Cloniger, 193 S.E.2d 647, 652 (S.C. 1973) (holding that “[o]nly confidential communications are protected by the attorney-client privilege.”).
13. Love, 271 S.E.2d at 112; South Carolina State Highway Dep't v. Booker, 195 S.E.2d 615, 620 (S.C. 1973).
14. Hitopoulus, 309 S.E.2d at 749.
15. Marshall, 320 S.E.2d at 46-47.
16. Id. at 48.
17. Marshall, 320 S.E.2d at 46.
23. Id. at 47.
28. Id. at 47-48.
29. State v. Doster, 284 S.E.2d 218, 220 (S.C. 1981).
31. Rule 1.6, RPC, Rule 407, SCACR.
32. Booker, 195 S.E.2d at 620.
33. S.C. R. Civ. P. 26(b)(3) states: “Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for the trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.”
34. Tobaccoville USA, Inc. v. McMaster, 692 S.E.2d 526, 530 (S.C. 2010).
35. Nat'l Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 983-84 (4th Cir. 1992).
36. Id. at 984.
38. Id.; see also Fed. R. Civ. P. 26(b)(3) and S.C. R. Civ. P. 26(b)(3).
39. Tobaccoville, 692 S.E.2d at 530.
40. Nat'l Union, 967 F.2d at 984.
41. See id.
45. Id. at 985.
47. See id.
48. Id. (citing McDougall v. Dunn, 468 F.2d 468, 474 (4th Cir. 1972)).
49. National Union, 967 F.2d at 986.
50. See id.
51. Id. at 985.