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Floyd v. Floyd6/13/2005
ttorney and the client whereby utmost confidence in the continuing secrecy of all confidential disclosures made by the client within the relationship is maintained. The privilege belongs to the client and, unless waived by him, survives even his death. South Carolina State Highway Department v. Booker, 260 S.C. 245, 195 S.E.2d 615 (1973). Generally, the party asserting the privilege must raise it. State v. Love, S.C. , 271 S.E.2d 110 (1980).
Many jurisdictions strictly construe the privilege. 81 Am.Jur.2d Witnesses § 174, at 210. The reasoning behind the strict construction is that evidence excluded under the privilege is not necessarily incompetent. See generally, McCormick, Handbook of the Law of Evidence, §§ 87, et seq. (2d Ed. 1972).
We agree that the privilege must be tailored to protect only confidences disclosed within the relationship.
Doster at 650-51, 284 S.E.2d 219-20.
The United States Supreme Court, in Upjohn Co. v. United States, 449 U.S. 383 (1981), observed:
The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law. Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client. . . . The lawyer-client privilege rests on the need for the advocate and counselor to know all that relates to the client's reasons for seeking representation if the professional mission is to be carried out.
Upjohn at 389 (internal quotation marks and citations omitted).
In order to protect a communication on the ground of attorney-client privilege, it must appear that the attorney was acting, at the time, as a legal advisor. Marshall v. Marshall, 282 S.C. 534, 539, 320 S.E.2d 44, 47 (Ct. App. 1984) (citing Branden & Nether v. Gowing, 7 Rich. 459 (S.C. 1854)). Only confidential communications are protected by the attorney-client privilege. Cloniger v. Cloniger, 261 S.C. 603, 193 S.E.2d 647 (1973). In Ross v. Medical University of South Carolina, 317 S.C. 377, 453 S.E.2d 880 (1994), the South Carolina Supreme Court stated:
Attorney-client privilege protects a client and any other person from disclosing confidential communications made to counsel relative to a legal matter. See generally McCormick on Evidence § 87 (E. Cleary, 3rd Ed. 1984). However, this privilege is not absolute:
Not every communication within the attorney and client relationship is privileged. The public policy protecting confidential communications must be balanced against the public interest in the proper administration of justice. This is exemplified by the widely recognized rule that the privilege does not extend to communications in furtherance of criminal tortious or fraudulent conduct.
State v. Doster, 276 S.C. 647, 651, 284 S.E.2d 218, 220 (1981) (internal citations omitted).
Ross at 383-84, 453 S.E.2d at 884-85.
The privilege may extend to agents of the attorney. For example, in State v. Hitopoulus, 279 S.C. 549, 309 S.E.2d 747 (1983), our supreme court held the attorney-client privilege extended to communications between a client and a psychiatrist retained to aid in the preparation of the client's case. As articulated in State v. Thompson, 329 S.C. 72, 495 S.E.2d 437 (1998):
n determining whether the attorney-client privilege extends to communications between a client and a non-lawyer, [a court] must bala
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