Lex Mundi Global Attorney-Client Privilege Guide |
|
USA, South Carolina |
|
|
(United States)
Firm
Wyche
Contributors
Wade Kolb |
|
| Is the ACP recognized in your jurisdiction? | Yes |
| If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure... | N/A |
| Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product? | Generally speaking, no distinction is made in South Carolina in applying the ACP in civil and criminal proceedings, and government authorities cannot compel disclosure of attorney-client communications and legal work product. Like many other jurisdictions, however, South Carolina does recognize the exception that the ACP does not extend to communications in furtherance of criminal, tortious, or fraudulent conduct. |
| In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP? (e.g., in the U.S.: the Upjohn approach, control group test, etc.) | The South Carolina Supreme Court has recognized that a client can be a corporation as well as an individual, but neither that Court nor the South Carolina Court of Appeals has specifically addressed whether South Carolina applies the Upjohn approach or the control group test. |
| Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications? | Generally speaking, no. Communications with in-house counsel who are either full members of the South Carolina Bar or who hold Limited Certificates of Admission under Rule 405, are generally within the attorney-client privilege to the same extent as communications with outside counsel. However, the privilege would only attach to confidential communications made for the purpose of giving or obtaining advice that is predominantly legal in nature, as opposed to business advice such as financial advice or discussions concerning business negotiations. |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | N/A |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | N/A |
| Is the common interest doctrine recognized in your jurisdiction? | Yes |
| How is the doctrine articulated in your jurisdiction? | The Common Interest Doctrine is understood not as a privilege itself but instead as “an exception to the waiver of existing privilege.” Tobaccoville USA, Inc. v. McMaster, 692 S.E.2d 526, 531 (S.C. 2010). The Doctrine “protects the transmission of data to which the attorney-client privilege or work-product protection has attached when it is shared between parties with a common interest in a legal matter” and is thus an “exception to the general rule that disclosure of privileged information waives the applicable privilege.” Id. |
| Must a common interest agreement be in writing? | No South Carolina appellate court has addressed whether a common interest agreement must be in writing, but a written agreement is generally advisable. |
| Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect? | South Carolina has abolished the doctrine of champerty, and litigation funding is now generally permitted so long as it does not violate South Carolina’s statutory prohibition on barratry. Lawyers entering into litigation funding arrangements must take care that the funding is consistent with the South Carolina Rules of Professional Conduct, including in particular Rule 1.8(f), which prohibits a lawyer from accepting compensation for representing a client from anyone other than the client unless (1) the client gives informed consent; (2) there is no interference with the lawyer’s professional judgment or with the client-lawyer relationship; and (3) information relating to representation of the client remains confidential as otherwise required under the Rules of Professional Conduct. |
| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | No, South Carolina appellate court has addressed this issue. |
| Is the crime-fraud exception recognized in your jurisdiction? | Yes |
| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | The South Carolina Supreme Court explained in State v Doster, 284 S.E.2d 218, 220 (S.C. 1981), that the ACP “does not extend to communications in furtherance of criminal, tortious, or fraudulent conduct.” See also Ross v. Medical University of South Carolina, 453 S.E.2d 880, 884-85 (S.C. 1994) (same). |
| Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings? (In the U.S.: What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?) | Yes. South Carolina Rule of Civil Procedure 26(b)(3) is analogous to the corresponding federal rule. |
| What are the elements of the protection in your jurisdiction? | In general the work product doctrine in South Carolina “protects from discovery documents prepared in anticipation of litigation, unless a substantial need can be shown by the requesting party.” Tobaccoville USA, Inc. v. McMaster, 692 S.E.2d 526, 530 (S.C. 2010). South Carolina law further provides that to determine whether a document has been prepared in anticipation of litigation, courts should “look to whether or not the document was prepared because of the prospect of litigation.” Id. |
| Does your jurisdiction recognize an accountant-client privilege? | No |
| Does your jurisdiction recognize a mediation privilege? | Generally yes. Rule 8 of the South Carolina Alternative Dispute Resolution Rules provides for the confidentiality of mediation and protects mediation communications from being disclosed in an arbitral, judicial, or other proceeding, subject to certain specified exceptions. |
| Does your jurisdiction recognize a settlement negotiation privilege? | Generally yes. South Carolina Rule of Evidence 408 is analogous to the corresponding federal rule and provides that evidence of offering or accepting consideration in an effort to compromise a disputed claim is not admissible to prove liability for the claim or the amount of damages. Similarly, evidence of conduct or statements made in compromise negotiations is not admissible. These general principles are subject to certain exceptions, such as when the evidence is offered for another purpose like demonstrating bias or prejudice of a witness. |
Lex Mundi Global Attorney-Client Privilege Guide
Yes
N/A
Generally speaking, no distinction is made in South Carolina in applying the ACP in civil and criminal proceedings, and government authorities cannot compel disclosure of attorney-client communications and legal work product. Like many other jurisdictions, however, South Carolina does recognize the exception that the ACP does not extend to communications in furtherance of criminal, tortious, or fraudulent conduct.
The South Carolina Supreme Court has recognized that a client can be a corporation as well as an individual, but neither that Court nor the South Carolina Court of Appeals has specifically addressed whether South Carolina applies the Upjohn approach or the control group test.
Generally speaking, no. Communications with in-house counsel who are either full members of the South Carolina Bar or who hold Limited Certificates of Admission under Rule 405, are generally within the attorney-client privilege to the same extent as communications with outside counsel. However, the privilege would only attach to confidential communications made for the purpose of giving or obtaining advice that is predominantly legal in nature, as opposed to business advice such as financial advice or discussions concerning business negotiations.
N/A
N/A
Yes
The Common Interest Doctrine is understood not as a privilege itself but instead as “an exception to the waiver of existing privilege.” Tobaccoville USA, Inc. v. McMaster, 692 S.E.2d 526, 531 (S.C. 2010). The Doctrine “protects the transmission of data to which the attorney-client privilege or work-product protection has attached when it is shared between parties with a common interest in a legal matter” and is thus an “exception to the general rule that disclosure of privileged information waives the applicable privilege.” Id.
No South Carolina appellate court has addressed whether a common interest agreement must be in writing, but a written agreement is generally advisable.
South Carolina has abolished the doctrine of champerty, and litigation funding is now generally permitted so long as it does not violate South Carolina’s statutory prohibition on barratry. Lawyers entering into litigation funding arrangements must take care that the funding is consistent with the South Carolina Rules of Professional Conduct, including in particular Rule 1.8(f), which prohibits a lawyer from accepting compensation for representing a client from anyone other than the client unless (1) the client gives informed consent; (2) there is no interference with the lawyer’s professional judgment or with the client-lawyer relationship; and (3) information relating to representation of the client remains confidential as otherwise required under the Rules of Professional Conduct.
No, South Carolina appellate court has addressed this issue.
Yes
The South Carolina Supreme Court explained in State v Doster, 284 S.E.2d 218, 220 (S.C. 1981), that the ACP “does not extend to communications in furtherance of criminal, tortious, or fraudulent conduct.” See also Ross v. Medical University of South Carolina, 453 S.E.2d 880, 884-85 (S.C. 1994) (same).
Yes. South Carolina Rule of Civil Procedure 26(b)(3) is analogous to the corresponding federal rule.
In general the work product doctrine in South Carolina “protects from discovery documents prepared in anticipation of litigation, unless a substantial need can be shown by the requesting party.” Tobaccoville USA, Inc. v. McMaster, 692 S.E.2d 526, 530 (S.C. 2010). South Carolina law further provides that to determine whether a document has been prepared in anticipation of litigation, courts should “look to whether or not the document was prepared because of the prospect of litigation.” Id.
No
Generally yes. Rule 8 of the South Carolina Alternative Dispute Resolution Rules provides for the confidentiality of mediation and protects mediation communications from being disclosed in an arbitral, judicial, or other proceeding, subject to certain specified exceptions.
Generally yes. South Carolina Rule of Evidence 408 is analogous to the corresponding federal rule and provides that evidence of offering or accepting consideration in an effort to compromise a disputed claim is not admissible to prove liability for the claim or the amount of damages. Similarly, evidence of conduct or statements made in compromise negotiations is not admissible. These general principles are subject to certain exceptions, such as when the evidence is offered for another purpose like demonstrating bias or prejudice of a witness.