Lawyers who represent entities such as governmental bodies sometimes must deal with an individual member’s handling of privileged communications. Not surprisingly, individual members sometimes claim that they can control or even waive the entity’s privilege.
In Wilson v. Preston, 662 S.E.2d 580 (S.C. 2008), an individual member of a county council sought access to government records in the county administrator’s possession. The South Carolina Supreme Court held that only the full council could authorize the release of such information. The court explained that a single council member “cannot independently review attorney-client privileged documents. The privilege belongs to the client County; and the Council, as a whole, is authorized to release that information and has to waive the privilege before an individual councilmember can review privileged documents.” Id. at 585.
This scenario might play out differently in other jurisdictions or in a corporate board of directors context, but all lawyers who represent clients controlled by a group of individuals must be prepared to deal with an individual member’s claim to control the client’s privilege.