Swidler & Berlin v. United States
524 U.S. 399 (1998)
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Rule of Law:
The attorney-client privilege survives the death of the client, protecting confidential communications from disclosure even in the context of a criminal investigation.
Facts:
- Vincent W. Foster, Jr., then Deputy White House Counsel, was under investigation for his role in the dismissal of White House Travel Office employees.
- In July 1993, Foster sought legal representation from attorney James Hamilton of the law firm Swidler & Berlin.
- During a two-hour meeting, Hamilton took three pages of handwritten notes regarding their confidential conversation, with one of the first entries being the word 'Privileged.'
- Nine days after this meeting, Foster committed suicide.
Procedural Posture:
- A federal grand jury, at the request of the Independent Counsel, issued a subpoena for attorney James Hamilton's notes from his meeting with Vincent Foster.
- Hamilton and his firm, Swidler & Berlin, filed a motion to quash the subpoena in the U.S. District Court, asserting attorney-client and work-product privileges.
- The District Court (the court of first instance) granted the motion to quash, finding the notes were protected by both privileges.
- The Independent Counsel (the Government) appealed to the U.S. Court of Appeals for the District of Columbia Circuit.
- The Court of Appeals (the intermediate appellate court) reversed the District Court, holding that the privilege was not absolute and that a balancing test should apply to determine if the notes should be disclosed.
- Petitioners Hamilton and Swidler & Berlin appealed the reversal and were granted a writ of certiorari by the U.S. Supreme Court.
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Issue:
Does the attorney-client privilege survive the death of the client, thereby protecting an attorney's notes of a confidential communication from disclosure in a subsequent criminal investigation?
Opinions:
Majority - Chief Justice Rehnquist
Yes. The attorney-client privilege survives the death of the client. The well-established common law rule is that the privilege extends beyond the client's death, and there is no compelling reason rooted in 'reason and experience' to abrogate it for criminal investigations. The purpose of the privilege is to encourage full and frank communication between attorneys and clients; this purpose would be undermined if clients feared posthumous disclosure of communications that could harm their reputations, expose their families to civil liability, or cause other injury. Adopting a balancing test, as the Court of Appeals suggested, would introduce substantial uncertainty into the privilege, rendering it less effective. Unlike the testamentary exception, which furthers a client's intent, a posthumous exception for criminal cases is at odds with the privilege's core goals.
Dissenting - Justice O’Connor
No. The attorney-client privilege should not be an absolute bar to disclosure after the client's death in criminal proceedings. Evidentiary privileges hinder the search for truth and should be construed narrowly. After a client's death, their personal interest in confidentiality is greatly diminished, while the justice system's need for the information—especially to exonerate an innocent defendant or for a compelling law enforcement purpose—can be paramount. A balancing test should be employed to determine if the interests in fairness and accuracy outweigh the deceased client's posthumous interest in confidentiality, particularly when the information is otherwise unavailable.
Analysis:
This decision solidifies the perpetual nature of the attorney-client privilege, confirming the traditional common law view that it is not extinguished by the client's death. By rejecting a balancing test, the Court reinforced the principle that for an evidentiary privilege to be effective, it must be certain and predictable. The ruling prioritizes the promotion of candid attorney-client communication over the truth-seeking function of the courts in criminal investigations, setting a firm precedent against creating new, judicially-crafted exceptions to this foundational privilege.
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