Attorney-Client Privilege

In a landmark decision, the United States Supreme Court today clarified the scope and duration of the attorney-client privilege, concluding that the privilege is very broad and continues beyond the life of the client. Swidler & Berlin v. United States involved the well-publicized attempt by Special Prosecutor Kenneth Starr to obtain access to certain notes taken by an attorney for the late Vincent Foster, nine days before Foster committed suicide. Foster had met with attorney James Hamilton to seek legal representation concerning possible congressional or other investigations relating to the 1993 dismissal of certain White House Travel Office employees. Hamilton had taken three pages of notes during this meeting and had written the word "Privileged" as one of the first entries in the notes.

Chief Justice Rehnquist, speaking for the Court, made it abundantly clear that in cases such as the present one the attorney-client privilege is very broad and will even survive the death of the client. In refusing to use a "balancing test" (balancing the importance of the information against the client's interests) to define the contours of the privilege, the Court rejected the Independent Counsel's argument that the attorney-client privilege should not prevent disclosure of confidential communications where the client has died and the information is relevant to a criminal proceeding. The Court also rejected the argument that a current exception to the attorney-client privilege, where a client has died and litigation ensues between the testator's heirs--the so-called "testamentary exception," was analogous to the case at hand. The Court pointed out that the rationale for the testamentary exception was that it furthered the client's intent, an assumption that, lacking clear evidence, cannot be made in other contexts. The Court also emphasized the need to assure the posthumous application of the attorney-client privilege in order to encourage full disclosure by clients to their attorneys.

This decision is especially important because it provides a clear statement from the Supreme Court that a client's confidences will be maintained and protected, even after the client's death.