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TO AMEND ARTICLE 1, CHAPTER 1, TITLE 62, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO AN ATTORNEY-CLIENT PRIVILEGE, BY ADDING SECTION 62-1-110 SO AS TO PROVIDE THAT WHERE 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:
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. A successor fiduciary is not entitled to disclosure of privileged communications between the lawyer and the predecessor fiduciary and is not entitled to waive the privilege between the lawyer and the predecessor fiduciary without prior written informed consent from the predecessor 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)."
SECTION 2. This act takes effect upon approval by the Governor.
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