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How Does the Attorney-Client Privilege Work in South Carolina Criminal Cases?

by | Dec 1, 2021 | Criminal Defense

When you hire an attorney to represent you, you are entitled to the protections afforded by the attorney-client privilege. This protection is critical, as it allows you to provide your attorney with as much information as possible. Criminal defense attorneys need to know the truth in order to provide effective legal representation, and the attorney-client privilege gives clients the confidence to share everything their attorneys need to know.

The attorney-client privilege is extremely broad. It applies to nearly all types of information clients might share with their attorneys; and, while there are a few exceptions, these exceptions are irrelevant in the vast majority of cases. If you need to hire an attorney but have concerns about sharing information that could be used against you, here are some important facts for you to know:

1. A Lawyer “Shall Not Reveal” a Client’s Confidential Information

The attorney-client privilege creates an obligation for attorneys to keep their client’s information strictly confidential.  The rules governing legal practice in South Carolina state:

“A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted [under an exception].”

The beginning of this quoted language is critical—a lawyer “shall not reveal” a client’s confidential information. Lawyers are required to protect what their clients tell them, and judges and prosecutors must respect this obligation. The attorney-client privilege is fundamental to the legal system in South Carolina, and it exists so that clients can get the advice and representation they need to defend themselves by all means available.

2. The Attorney-Client Privilege Belongs to the Client

Another critical aspect of the attorney-client privilege is that the privilege belongs to the client. This means that the privilege protects you, not your attorney. It also means that your attorney cannot waive your privilege, nor can your attorney choose what information to protect and what information to disclose. For your attorney to disclose your confidential information, either:

  • You must give your attorney informed consent (i.e. you might give your attorney informed consent to share information for purposes of negotiating a plea bargain);
  • The disclosure must be “impliedly authorized” (i.e. your attorney must need to share the information in order to present your defense); or,
  • An exception must apply (we discuss the exceptions to the attorney-client privilege below).

3. The Privilege Requires the Existence of an Attorney-Client Relationship

The attorney-client privilege only applies when there exists an attorney-client relationship. If you share information with an attorney who is not representing you, the privilege does not apply. This means that you should not input confidential information into an online form, and you should not share information that you want to protect with someone who is not your attorney. If you hire a criminal defense attorney to represent you, the attorney will make clear when the attorney-client privilege applies.

4. You Can Accidentally Waive the Attorney-Client Privilege

While your attorney must protect your confidential information, you must do your part to protect it too. If you share confidential information with someone other than your attorney—whether a police officer, prosecutor, family member, or friend—then the attorney-client privilege no longer applies. You will be deemed to have “waived” the privilege, and this could potentially mean that all of the information you shared with your attorney is now subject to disclosure.

Also, the simple fact that you have shared information with your attorney does not mean that it is protected entirely. For example, if the police execute a search warrant and lawfully seize your phone or laptop, they can use the information they obtain from your devices even if you have already shared it with your attorney. In other words, the privilege does not provide blanket protection for any information you may have told your legal counsel. You still need to be very careful to avoid disclosing self-incriminating information—and this means that you should generally exercise your right to remain silent.

5. There are Limited Exceptions to the Attorney-Client Privilege

As we’ve mentioned, there are exceptions to the attorney-client privilege in South Carolina. However, as we’ve also mentioned, these exceptions do not apply in the vast majority of circumstances. A lawyer can only disclose a client’s confidential information against the client’s wishes if the disclosure is necessary to:

  • Prevent the client from committing a criminal act;
  • Prevent reasonably certain death or substantial bodily harm;
  • Prevent the client from committing a fraud that is reasonably certain to result in financial harm and “in furtherance of which the client has used or is using the lawyer’s services;”
  • Prevent financial harm that is reasonably certain to result from the client’s commission of a crime or fraud “in furtherance of which the client has used the lawyer’s services;”
  • Obtain legal advice about the lawyer’s compliance with his or her professional responsibilities;
  • Establish a claim or a defense in a dispute with the client or in a lawsuit or criminal case against the lawyer “based upon conduct in which the client was involved;” or,
  • Comply with the law or court order.

Let’s say you were charged with marijuana possession, driving under the influence (DUI), or any of the other charges that usually lead to individuals’ first interactions with the criminal justice system. In a typical scenario, there would be no reason for any of these exceptions to apply. Your lawyer would have an obligation to protect all information you share about your case, and your lawyer would only be able to use this information to protect you.

Schedule a Free and Confidential Consultation with a Rock Hill Criminal Defense Lawyer

If you have been charged with a crime in South Carolina, hiring an experienced lawyer is the best thing you can do to protect yourself. To schedule a free and confidential consultation with a Rock Hill criminal defense lawyer, call 803-328-8822 or tell us how we can reach you online now.

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