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Attorney-Client Privilege

In a landmark decision, the United States Supreme Court clarified the scope and duration of the attorney-client privilege. The court concluded that the privilege is very broad and continues beyond the life of the client. [Swidler & Berlin v. United States (1998) 524 US 399.]

Summary of the Facts

The matter of 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.

The District Court

A federal grand jury, pursuant to the request of Special Prosecutor Kenneth Starr, issued a subpoena to Hamilton and Swidler & Berlin, attorneys for Vincent Foster. Hamilton filed a motion to quash arguing that the notes were protected by attorney client privilege and attorney work-product. The District Court examined the notes in camera and concluded that they were protected from disclosure by both doctrines and denied the enforcement of the subpoena.

Court of Appeals

The Court of Appeals for the District of Columbia reversed the District Court's decision. [In re Sealed Case, (1997)124 F. 3d 230, Ct. App. Dist of Columbia.] The Court of Appeals believed that the notes contained factual information and remanded the case to the District Court so that the notes could be redacted and then disclosed.

Supreme Court Review

Hamilton sought review by the Supreme Court on both the attorney-client and work-product privileges. Chief Justice Rehnquist, speaking for the Supreme 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.


Swidler & Berlin stands for the proposition that attorney-client privilege continues after the death of the client. 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.

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