H*3605(Rat #0250, Act #0211 of 2008)  General Bill, By Harrison

Similar(S 502)
 AN ACT TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION
 62-1-110 SO AS TO CLARIFY THAT IF AN ATTORNEY-CLIENT RELATIONSHIP EXISTS
 BETWEEN A LAWYER AND A FIDUCIARY, COMMUNICATIONS BETWEEN THE LAWYER AND THE
 FIDUCIARY ARE PRIVILEGED UNLESS WAIVED BY THE FIDUCIARY. - ratified title

   02/28/07  House  Introduced and read first time HJ-29
   02/28/07  House  Referred to Committee on Judiciary HJ-29
   04/18/07  House  Committee report: Favorable with amendment
                     Judiciary HJ-24
   04/19/07  House  Amended HJ-46
   04/19/07  House  Read second time HJ-47
   04/19/07  House  Unanimous consent for third reading on next
                     legislative day HJ-47
   04/20/07  House  Read third time and sent to Senate HJ-2
   04/24/07  Senate Introduced and read first time SJ-5
   04/24/07  Senate Referred to Committee on Judiciary SJ-5
   04/26/07  Senate Referred to Subcommittee: Gregory (ch), Elliott,
                     Anderson, Ritchie, Cleary
   04/02/08  Senate Committee report: Favorable with amendment
                     Judiciary SJ-8
   04/09/08  Senate Committee Amendment Adopted SJ-92
   04/09/08  Senate Read second time SJ-92
   04/10/08  Senate Read third time and returned to House with
                     amendments SJ-27
   04/22/08  House  Concurred in Senate amendment and enrolled HJ-85
   05/08/08         Ratified R 250
   05/13/08         Signed By Governor
   05/19/08         Copies available
   05/19/08         Effective date 05/13/08
   05/20/08         Act No. 211

(A211, R250, H3605)

AN ACT TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 62-1-110 SO AS TO CLARIFY THAT IF AN ATTORNEY-CLIENT RELATIONSHIP EXISTS BETWEEN A LAWYER AND A FIDUCIARY, COMMUNICATIONS BETWEEN THE LAWYER AND THE FIDUCIARY ARE PRIVILEGED UNLESS WAIVED BY THE FIDUCIARY.

Be it enacted by the General Assembly of the State of South Carolina:

Fiduciary-lawyer privilege

SECTION    1.    Article 1, Chapter 1, Title 62 of the 1976 Code is amended by adding:

"Section 62-1-110.    Whenever an attorney-client relationship exists between a lawyer and a fiduciary, communications between the lawyer and the fiduciary shall be subject to the attorney-client privilege unless waived by the fiduciary, even though fiduciary funds may be used to compensate the lawyer for legal services rendered to the fiduciary. The existence of a fiduciary relationship between a fiduciary and a beneficiary does not constitute or give rise to any waiver of the privilege for communications between the lawyer and the fiduciary.

South Carolina Reporter's Comments

This section was enacted and intended to: (i) expressly reject the concept of a 'fiduciary exception' to any attorney-client privilege; (ii) encourage full disclosure by the fiduciary to the lawyer to further the administration of justice; and (iii) foster confidence between a fiduciary and his lawyer that will lead to a trusting and open attorney-client dialogue. See Estate of Kofsky, 487 Pa. 473 (1979). This section also expressly rejects the holding set forth in the case of Riggs Natl. Bank v. Zimmer, 355 A.2d 709 (Del. Ch. 1976)(trustee's invocation of the attorney-client privilege does not shield document from disclosure to trust beneficiaries) as applied by the Court in Floyd v. Floyd, 365 S.C. 56, 615 S.E.2d 465 (Ct. App. 2005)."

Time effective

SECTION    2.    This act takes effect upon approval by the Governor.

Ratified the 8th day of May, 2008.

Approved the 13th day of May, 2008.