Swidler & Berlin v. United States

Background

An attorney, James Hamilton, took handwritten notes during a two-hour meeting with Vincent W. Foster Jr., a client who sought legal advice about investigations into White House personnel firings and who died by suicide nine days later. The Office of Independent Counsel later subpoenaed Hamilton’s notes for a federal grand-jury criminal investigation. The District Court inspected the notes privately and refused to enforce the subpoenas, but the Court of Appeals ordered disclosure under a balancing test.

Reasoning

The Supreme Court reversed the Court of Appeals and held that the attorney-client privilege protects the notes even after the client’s death. The majority explained that the privilege is long-established and exists to encourage full and frank communication between lawyers and clients. The Court said overturning that rule for posthumous criminal investigations would create uncertainty, might chill client candor, and lacked strong empirical support. The Court declined to reach the separate argument about work-product protection.

Real world impact

The ruling prevents the Government from compelling disclosure of a deceased client’s confidential communications in this case and affirms that attorneys can assert the privilege after a client dies. Investigators and prosecutors therefore face higher barriers when seeking posthumous lawyer notes. The decision leaves open rare, unspecified situations where constitutional rights of a criminal defendant or other exceptional circumstances might justify disclosure; the Court said those circumstances were not present here.

Dissents or concurrances

Justice O’Connor, joined by Justices Scalia and Thomas, dissented, arguing courts should allow narrow posthumous exceptions when exculpatory evidence or compelling law enforcement needs cannot be obtained otherwise.