U.S. Supreme Court rules attorney-client privilege extends after
death
June 26, 1998
In a 6-3 decision certain to be praised by attorneys nationwide, the
U.S. Supreme Court on June 25 ruled that attorney-client privilege
extends beyond the death of a client.
The High
Court's decision, which was in response to a petition brought by
Whitewater Special Prosecutor Kenneth Starr, underscored the
well-established principle that confidential communications between
attorneys and their clients are a crucial to effective representation.
Starr was seeking to subpoena communications between the late Vincent
Foster and his attorney taken a shortly before the White House deputy
counsel's suicide.
Writing for the majority, Chief Justice William Rehnquist said:
"[W]e 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."
Rehnquist further argued that:
"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."
The majority opinion was joined by Justices John Paul Stevens,
Anthony Kennedy, Ruth Bader Ginsberg, Stephen Breyer, and David
Souter.
Justice Sandra Day O'Connor with whom Justices Antonin Scalia and
Clarence Thomas joined in dissent,
argued that clients "posthumous interest in confidentiality" with their
attorneys must be weighed against the requirements for justice in a
given case:
"Where the exoneration of an innocent criminal defendant or a
compelling law enforcement interest is at stake," Justice O'Connor
wrote, "the harm of precluding critical evidence that isunavailable by
any other means outweighs the potential disincentive to forthright
communication."
State Bar of Wisconsin President Steve Sorenson welcomed news of the
Court's ruling during an interview at the State Bar's Annual Convention
in Lake Geneva Friday.
"The extension is appropriate given the nature of litigation we've
seen recently that has put not only the attorney but often the families
in great jeopardy," Sorenson said. "This [decision] will probably take
the concept that always was thought to exist and clarify it, to avoid
confusion in the future. The decision really does help both the client
and the lawyer understand their relationship. [Lawyer's won't have to]
feel like they're at jeopardy when they are meeting with clients,
especially clients that may be in a terminal condition or something of
that nature."
