South Carolina General Assembly
117th Session, 2007-2008

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Bill 3605

Indicates Matter Stricken
Indicates New Matter

(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

COMMITTEE AMENDMENT ADOPTED

April 9, 2008

H. 3605

Introduced by Rep. Harrison

S. Printed 4/9/08--S.

Read the first time April 24, 2007.

            

A BILL

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.

Amend Title To Conform

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.

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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