Swidler & Berlin v. United States

Chief Justice REHNQUIST delivered the opinion of the Court.

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This dispute arises out of an investigation conducted by the Office of the Independent Counsel into whether various individuals made false statements, obstructed justice, or committed other crimes during investigations of the 1993 dismissal of employees from the White House Travel Office. Vincent W. Foster, Jr., was Deputy White House Counsel when the firings occurred. In July 1993, Foster met with petitioner Hamilton, an attorney at petitioner Swidler & Berlin, to seek legal representation concerning possible congressional or other investigations of the firings. During a 2-hour meeting, Hamilton took three pages of handwritten notes. One of the first entries in the notes is the word “Privileged.” Nine days later, Foster committed suicide.

In December 1995, a federal grand jury, at the request of the Independent Counsel, issued subpoenas to petitioners Hamilton and Swidler & Berlin for, inter alia, Hamilton's handwritten notes of his meeting with Foster. Petitioners filed a motion to quash, arguing that the notes were protected by the attorney-client privilege and by the work-product privilege. The District Court, after examining the notes in camera, concluded they were protected from disclosure by both doctrines and denied enforcement of the subpoenas.

The Court of Appeals for the District of Columbia Circuit reversed. . . . While recognizing that most courts assume the privilege survives death, the Court of Appeals noted that holdings actually manifesting the posthumous force of the privilege are rare. Instead, most judicial references to the privilege's posthumous application occur in the context of a well-recognized exception allowing disclosure for disputes among the client's heirs. . . . It further noted that most commentators support some measure of posthumous curtailment of the privilege. . . . The Court of Appeals thought that the risk of posthumous revelation, when confined to the criminal context, would have little to no chilling effect on client communication, but that the costs of protecting communications after death were high. It therefore concluded that the privilege was not absolute in such circumstances, and that instead, a balancing test should apply. . . . It thus held that there is a posthumous exception to the privilege for communications whose relative importance to particular criminal litigation is substantial. . . . While acknowledging that uncertain privileges are disfavored, . . .the Court of Appeals determined that the uncertainty introduced by its balancing test was insignificant in light of existing exceptions to the privilege. . . . The Court of Appeals also held that the notes were not protected by the work-product privilege.

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Petitioners sought review in this Court on both the attorney-client privilege and the work-product privilege. We granted certiorari, . . . and we now reverse.

The attorney-client privilege is one of the oldest recognized privileges for confidential communications. . . . The privilege is intended to encourage “full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.” Upjohn Co. v. United States. . . . The issue presented here is the scope of that privilege; more particularly, the extent to which the privilege survives the death of the client. Our interpretation of the privilege's scope is guided by “the principles of the common law . . . as interpreted by the courts . . . in the light of reason and experience.” Fed.Rule Evid. 501. . . .

The Independent Counsel argues 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. There is some authority for this position. One state appellate court, . . . and the Court of Appeals below have held the privilege may be subject to posthumous exceptions in certain circumstances. In Cohen [v. Jenkintown Cab Co.], a civil case, the court recognized that the privilege generally survives death, but concluded that it could make an exception where the interest of justice was compelling and the interest of the client in preserving the confidence was insignificant. . . .

But other than these two decisions, cases addressing the existence of the privilege after death-most involving the testamentary exception-uniformly presume the privilege survives, even if they do not so hold. . . . Several State Supreme Court decisions expressly hold that the attorney-client privilege extends beyond the death of the client, even in the criminal context. . . . In John Doe Grand Jury Investigation, for example, the Massachusetts Supreme Judicial Court concluded that survival of the privilege was “the clear implication” of its early pronouncements that communications subject to the privilege could not be disclosed at any time. . . . The court further noted that survival of the privilege was “necessarily implied” by cases allowing waiver of the privilege in testamentary disputes. . . .

Such testamentary exception cases consistently presume the privilege survives. . . . They view testamentary disclosure of communications as an exception to the privilege: “[T]he general rule with respect to confidential communications . . . is that such communications are privileged during the testator's lifetime and, also, after the testator's death unless sought to be disclosed in litigation between the testator's heirs.” [United States v.] Osborn. . . . The rationale for such disclosure is that it furthers the client's intent. . . .

Indeed, in Glover v. Patten, . . . this Court, in recognizing the testamentary exception, expressly assumed that the privilege continues after the individual's death. The Court explained that testamentary disclosure was permissible because the privilege, which normally protects the client's interests, could be impliedly waived in order to fulfill the client's testamentary intent. . . .

The great body of this case law supports, either by holding or considered dicta, the position that the privilege does survive in a case such as the present one. Given the language of Rule 501, at the very least the burden is on the Independent Counsel to show that “reason and experience” require a departure from this rule.

The Independent Counsel contends that the testamentary exception supports the posthumous termination of the privilege because in practice most cases have refused to apply the privilege posthumously. He further argues that the exception reflects a policy judgment that the interest in settling estates outweighs any posthumous interest in confidentiality. He then reasons by analogy that in criminal proceedings, the interest in determining whether a crime has been committed should trump client confidentiality, particularly since the financial interests of the estate are not at stake.

But the Independent Counsel's interpretation simply does not square with the case law's implicit acceptance of the privilege's survival and with the treatment of testamentary disclosure as an “exception” or an implied “waiver.” And the premise of his analogy is incorrect, since cases consistently recognize that the rationale for the testamentary exception is that it furthers the client's intent. . . . There is no reason to suppose as a general matter that grand jury testimony about confidential communications furthers the client's intent.

Commentators on the law also recognize that the general rule is that the attorney-client privilege continues after death. . . . Undoubtedly, as the Independent Counsel emphasizes, various commentators have criticized this rule, urging that the privilege should be abrogated after the client's death where extreme injustice would result, as long as disclosure would not seriously undermine the privilege by deterring client communication. . . . But even these critics clearly recognize that established law supports the continuation of the privilege and that a contrary rule would be a modification of the common law. . . .

Despite the scholarly criticism, we think there are weighty reasons that counsel in favor of posthumous application. Knowing that communications will remain confidential even after death encourages the client to communicate fully and frankly with counsel. While the fear of disclosure, and the consequent withholding of information from counsel, may be reduced if disclosure is limited to posthumous disclosure in a criminal context, it seems unreasonable to assume that it vanishes altogether. Clients may be concerned about reputation, civil liability, or possible harm to friends or family. Posthumous disclosure of such communications may be as feared as disclosure during the client's lifetime.

The Independent Counsel suggests, however, that his proposed exception would have little to no effect on the client's willingness to confide in his attorney. He reasons that only clients intending to perjure themselves will be chilled by a rule of disclosure after death, as opposed to truthful clients or those asserting their Fifth Amendment privilege. This is because for the latter group, communications disclosed by the attorney after the client's death purportedly will reveal only information that the client himself would have revealed if alive.

The Independent Counsel assumes, incorrectly we believe, that the privilege is analogous to the Fifth Amendment's protection against self-incrimination. But as suggested above, the privilege serves much broader purposes. Clients consult attorneys for a wide variety of reasons, only one of which involves possible criminal liability. . . . These confidences may not come close to any sort of admission of criminal wrongdoing, but nonetheless be matters which the client would not wish divulged.

The contention that the attorney is being required to disclose only what the client could have been required to disclose is at odds with the basis for the privilege even during the client's lifetime. In related cases, we have said that the loss of evidence admittedly caused by the privilege is justified in part by the fact that without the privilege, the client may not have made such communications in the first place. . . . This is true of disclosure before and after the client's death. . . . In the case at hand, it seems quite plausible that Foster, perhaps already contemplating suicide, may not have sought legal advice from Hamilton if he had not been assured the conversation was privileged.

The Independent Counsel additionally suggests that his proposed exception would have minimal impact if confined to criminal cases, or, as the Court of Appeals suggests, if it is limited to information of substantial importance to a particular criminal case. However, there is no case authority for the proposition that the privilege applies differently in criminal and civil cases, and only one commentator ventures such a suggestion. . . . In any event, a client may not know at the time he discloses information to his attorney whether it will later be relevant to a civil or a criminal matter, let alone whether it will be of substantial importance. Balancing ex post the importance of the information against client interests, even limited to criminal cases, introduces substantial uncertainty into the privilege's application. For just that reason, we have rejected use of a balancing test in defining the contours of the privilege. . . .

In a similar vein, the Independent Counsel argues that existing exceptions to the privilege, such as the crime-fraud exception and the testamentary exception, make the impact of one more exception marginal. However, these exceptions do not demonstrate that the impact of a posthumous exception would be insignificant, and there is little empirical evidence on this point. The established exceptions are consistent with the purposes of the privilege, . . . while a posthumous exception in criminal cases appears at odds with the goals of encouraging full and frank communication and of protecting the client's interests. . . .

Finally, the Independent Counsel, relying on cases such as United States v. Nixon, . . . and Branzburg v. Hayes, . . . urges that privileges be strictly construed because they are inconsistent with the paramount judicial goal of truth seeking. But both Nixon and Branzburg dealt with the creation of privileges not recognized by the common law, whereas here we deal with one of the oldest recognized privileges in the law. And we are asked, not simply to “construe” the privilege, but to narrow it, contrary to the weight of the existing body of case law.

It has been generally, if not universally, accepted, for well over a century, that the attorney-client privilege survives the death of the client in a case such as this. While the arguments against the survival of the privilege are by no means frivolous, they are based in large part on speculation-thoughtful speculation, but speculation nonetheless-as to whether posthumous termination of the privilege would diminish a client's willingness to confide in an attorney. In an area where empirical information would be useful, it is scant and inconclusive.

Rule 501's direction to look to “the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience” does not mandate that a rule, once established, should endure for all time. Funk v. United States. . . . But here the Independent Counsel has simply not made a sufficient showing to overturn the common-law rule embodied in the prevailing caselaw. Interpreted in the light of reason and experience, that body of law requires that the attorney-client privilege prevent disclosure of the notes at issue in this case. The judgment of the Court of Appeals is

Reversed.

Justice O'CONNOR, with whom Justice SCALIA and Justice THOMAS join, dissenting.

Although the attorney-client privilege ordinarily will survive the death of the client, I do not agree with the Court that it inevitably precludes disclosure of a deceased client's communications in criminal proceedings. In my view, a criminal defendant's right to exculpatory evidence or a compelling law enforcement need for information may, where the testimony is not available from other sources, override a client's posthumous interest in confidentiality.

We have long recognized that “[t]he fundamental basis upon which all rules of evidence must rest-if they are to rest upon reason-is their adaptation to the successful development of the truth.” Funk v. United States. . . . In light of the heavy burden that they place on the search for truth, . . . “[e]videntiary privileges in litigation are not favored, and even those rooted in the Constitution must give way in proper circumstances,” Herbert v. Lando. . . . Consequently, we construe the scope of privileges narrowly. . . . We are reluctant to recognize a privilege or read an existing one expansively unless to do so will serve a “public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.” Trammel v. United States. . . .

The attorney-client privilege promotes trust in the representational relationship. . . . A privilege should operate, however, only where “necessary to achieve its purpose,” . . . and an invocation of the attorney-client privilege should not go unexamined “when it is shown that the interests of the administration of justice can only be frustrated by [its] exercise,” Cohen v. Jenkintown Cab Co. . . .

I agree that a deceased client may retain a personal, reputational, and economic interest in confidentiality. . . . But, after death, the potential that disclosure will harm the client's interests has been greatly diminished, and the risk that the client will be held criminally liable has abated altogether. Thus, some commentators suggest that terminating the privilege upon the client's death “could not to any substantial degree lessen the encouragement for free disclosure which is [its] purpose.” 1 J. Strong, McCormick on Evidence. . . . This diminished risk is coupled with a heightened urgency for discovery of a deceased client's communications in the criminal context. The privilege does not “protect disclosure of the underlying facts by those who communicated with the attorney,” Upjohn, . . . and were the client living, prosecutors could grant immunity and compel the relevant testimony. After a client's death, however, if the privilege precludes an attorney from testifying in the client's stead, a complete “loss of crucial information” will often result. . . .

As the Court of Appeals observed, the costs of recognizing an absolute posthumous privilege can be inordinately high. . . . Extreme injustice may occur, for example, where a criminal defendant seeks disclosure of a deceased client's confession to the offense. . . . In my view, the paramount value that our criminal justice system places on protecting an innocent defendant should outweigh a deceased client's interest in preserving confidences. . . . Indeed, even petitioners acknowledge that an exception may be appropriate where the constitutional rights of a criminal defendant are at stake. An exception may likewise be warranted in the face of a compelling law enforcement need for the information. “[O]ur historic commitment to the rule of law ... is nowhere more profoundly manifest than in our view that the twofold aim of criminal justice is that guilt shall not escape or innocence suffer.” Nixon. . . . Given that the complete exclusion of relevant evidence from a criminal trial or investigation may distort the record, mislead the factfinder, and undermine the central truth-seeking function of the courts, I do not believe that the attorney-client privilege should act as an absolute bar to the disclosure of a deceased client's communications. When the privilege is asserted in the criminal context, and a showing is made that the communications at issue contain necessary factual information not otherwise available, courts should be permitted to assess whether interests in fairness and accuracy outweigh the justifications for the privilege.

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Finally, the common law authority for the proposition that the privilege remains absolute after the client's death is not a monolithic body of precedent. Indeed, the Court acknowledges that most cases merely “presume the privilege survives,” . . . and it relies on the case law's “implicit acceptance” of a continuous privilege. . . .

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Where the exoneration of an innocent criminal defendant or a compelling law enforcement interest is at stake, the harm of precluding critical evidence that is unavailable by any other means outweighs the potential disincentive to forthright communication. In my view, the cost of silence warrants a narrow exception to the rule that the attorney-client privilege survives the death of the client. . . .

Accordingly, I would affirm the judgment of the Court of Appeals. Although the District Court examined the documents in camera, it has not had an opportunity to balance these competing considerations and decide whether the privilege should be trumped in the particular circumstances of this case. Thus, I agree with the Court of Appeals' decision to remand for a determination whether any portion of the notes must be disclosed.

With respect, I dissent.