The attorney-client privilege protects against the disclosure of confidential communications by a client to his or her attorney and it may apply to communications from a lawyer to his or her client. This means that, if the attorney-client privilege applies, neither you nor your lawyer can be compelled to divulge your written or oral communications. The South Carolina Supreme Court has explained that “[t]his privilege is based upon a wise public policy that considers that the interests of society are best promoted by inviting the utmost confidence on the part of the client in disclosing his secrets to his professional advisor, under the pledge of the law that such confidence should not be abused by permitting disclosure of such communications.” S.C. State Highway Dep’t v. Booker, 260 S.C. 245, 254, 195 S.E.2d 615, 619-20 (1973).
To establish that the attorney-client privilege exists, there must be a showing that an attorney-client relationship existed. In other words, just because you tell an attorney something, this is not sufficient to give rise to the privilege. There must be an attorney-client relationship.
Additionally, the communications must be of a confidential nature. So, even if an attorney-client relationship exists, that may not necessarily mean that your communication with your attorney is covered by the privilege. The Court of Appeals has explained that “[t]he 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.” Marshall v. Marshall, 282 S.C. 534, 538, 320 S.E.2d 44, 47 (Ct. App. 1984).
The attorney-client privilege does not protect communications with non-clients. Additionally, a client may waive the attorney-client privilege.
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