It can be hard to discuss embarrassing or sensitive issues with a stranger during a divorce, even if that person is your attorney. It can also be hard to feel secure bringing up matters like money, children, or possible infidelity with a person you may not have yet retained to represent you. Thankfully, the attorney-client privilege requires your lawyer (or prospective lawyer) to keep all of your sensitive information private, but how does confidentiality in South Carolina work once a divorce case actually is filed?
What is the attorney-client privilege?
The attorney-client privilege has a very practical importance to anyone considering hiring a lawyer, as it requires the attorney to keep matters told in confidence confidential. The privilege means that an attorney cannot be compelled, nor can they voluntarily disclose any issues that are relayed in confidence by the client. Rule 1.6 of the South Carolina Code of Professional Conduct states: “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent.”
When does the confidentiality rule apply?
Though it may seem obvious, not everyone realizes that before the attorney-client privilege can exist, there must first be an attorney-client relationship. For this to happen, the parties must have agreed upon the representation of the client. This is typically straightforward, with both sides understanding that questions asked or information revealed when a person has become or is seeking to become a client are covered.
Signing an agreement to employ counsel, fee contract, retainer agreement, or engagement letter or even entering into an oral agreement to begin representation are all evidence that such a relationship exists. No clear or written contracts are required for the attorney-client relationship to exist, as the relationship can be implied, as it is in most attorney consultation meetings before a person decides to hire the attorney.
When is confidentiality waived?
There are times when confidentiality is waived, and it is important for clients to be aware of this. Common examples of this occur when you speak in a public place, invite third parties into what would have otherwise been a confidential conversation, or disclose statements made in confidence with others after the fact. Lawyer-client communications are only confidential if they are made in a setting where it would be reasonable to expect them to remain confidential.
While many potential clients will want to bring family members or close friends into their initial consultation meetings to help choose an attorney, it’s important to remember that doing so could, in fact, waive the confidentiality of whatever is discussed in that meeting. Your family member or friend could later be deposed or called to testify about what they heard during that meeting.
Does the Attorney-Client Privilege Extend to Documents?
The short answer is that it depends. For documents that relate to the marital assets, marital debts, the children, the parental fitness of either party, or potential fault grounds in the divorce, attorney-client privilege typically will not extend to documents that existed prior to hiring an attorney, which relates to the issues of the case. Those documents are evidence, and once the case is filed, there are strict rules about preserving evidence that must be adhered to throughout the case. Those documents may also be “discoverable,” meaning that at some point during the case, they must be shared openly with the opposing side and their attorney.
However, communications you have between you and your attorney, such as phone calls, video calls, letters, emails, text messages, etc., are covered under the attorney-client privilege and therefore should be protected. Also, often in family court cases involving child custody, domestic abuse, or other issues, clients are instructed to keep a journal to document daily life or custody disputes and problems. When keeping such a journal to document things for your attorney’s information, write in big, bold letters, “Confidential – For My Attorney’s Eyes Only” on the very first page or inside cover of the journal. This will help designate this document as attorney-client privileged information throughout the case and therefore protected. Information from this journal should not be shared with anyone outside of your attorney’s advice to do so to maintain that confidentiality.
What About Documents Filed in the Family Court?
Documents filed about your case, including all pleadings, affidavits, financial declarations, and Orders issued by the Court, are typically not confidential. They are entered into what’s called the “public record” for the county in which the family court is located. There are specific rules which allow for certain types of cases to be “sealed” from public view within the family court clerk’s office. Since our legal system is founded on the concept of transparency for the public, it can be difficult to get a judge to order a file to be sealed, but some examples of when that would be appropriate are when the case involves abuse of a child (to protect the child’s privacy, not the offender’s) or when the parties are well-known community or business figures and releasing their personal details or private financial/business information into the public record would be detrimental to their ability to continue earning a livelihood or support their children.
Ben Stevens is a Fellow and First Vice President in the prestigious American Academy of Matrimonial Lawyers and a Board-Certified Family Trial Advocate by the National Board of Trial Advocacy. He has provided exceptional legal counsel and support to families throughout South Carolina for over a quarter of a century, handling all matters of family law, such as divorce, separation, alimony, child custody, child support, and visitation. He and his team are well-equipped to handle all family law matters, no matter your circumstances. Contact our office at (864) 598-9172 or SCFamilyLaw@offitkurman.com to schedule an initial consultation.
Author: J. Benjamin Stevens
Articles have been Reprinted with permission from the charlotte observer and Mike Hunter.
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