Dissent in Swidler & Berlin v. United States
524 U.S. 399 (1998) (1998) · Supreme Court of the United States
Swidler & Berlin held that the attorney-client privilege survives the death of the client. The decision rejected arguments that the privilege should yield after death when the communications are relevant to a criminal investigation. The case arose from the investigation into the death of White House Deputy Counsel Vincent Foster and was widely followed for its implications for the scope and duration of the attorney-client privilege.
What was the dissent in Swidler & Berlin v. United States?
Justice O'Connor, joined by Justice Scalia and Justice Thomas, dissented. She argued that the privilege should yield when the client is deceased and the information is needed in a criminal investigation. She proposed a balancing test weighing the importance of the information against the impact on the attorney-client relationship.
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Case Overview
Facts
Nine days before his death, Vincent Foster, Deputy White House Counsel, met with his personal attorney James Hamilton of Swidler & Berlin. Hamilton took handwritten notes during the meeting. After Foster's death by suicide, Independent Counsel Kenneth Starr subpoenaed Hamilton's notes as part of the investigation into the Whitewater affair and the circumstances of Foster's death. Hamilton and the firm asserted attorney-client privilege on behalf of Foster's estate.
Majority Holding
The Court held that the attorney-client privilege survives the death of the client. The privilege is not subject to a balancing test in which a criminal law enforcement need can override the privilege after the client's death. The only recognized posthumous exception is in the narrow testamentary context of disputes among the client's heirs.
Majority Reasoning
Chief Justice Rehnquist, writing for the majority, emphasized that the privilege has been recognized as surviving death for centuries and that this understanding is essential to its purpose. Clients must be able to communicate frankly with their attorneys without fear that their confidences will be revealed after death. If clients knew that the privilege would expire upon death, they would be less likely to share damaging information, which would undermine the quality of legal advice. The Court rejected the D.C. Circuit's balancing test, noting that such an approach would introduce uncertainty and reduce the protection the privilege provides. The testamentary exception was distinguished as a narrow, well-established exception that vindicates the client's own intent.
The Dissenting Opinion
Justice O'Connor, joined by Justice Scalia and Justice Thomas, dissented. She argued that the privilege should yield when the client is deceased and the information is needed in a criminal investigation. She proposed a balancing test weighing the importance of the information against the impact on the attorney-client relationship.
Key Quotes
“Knowing that communications will remain confidential even after death encourages the client to communicate fully and frankly with counsel.”
“Without assurance of the privilege's posthumous application, the client may very well not have made disclosures to his attorney at all, so the loss of evidence is more apparent than real.”
“The attorney-client privilege is one of the oldest recognized privileges for confidential communications.”
Impact and Legacy
Swidler & Berlin settled a significant question about the duration of the attorney-client privilege. The decision provides certainty to clients and attorneys that communications will remain privileged even after the client's death, which is essential for the privilege to serve its purpose of encouraging candid communication. The case has particular significance in the context of estate planning, where clients may share information with attorneys that they would not want revealed even posthumously.
Exam Relevance
Swidler & Berlin is tested in privilege questions involving deceased clients. Professors may present a scenario where a deceased client's attorney is subpoenaed to testify about confidential communications, and students must determine whether the privilege applies. The key issue is whether the testamentary exception applies or whether the criminal investigation justifies piercing the privilege. Students should be prepared to discuss the policy arguments for and against posthumous privilege protection.
Study Tips
- Know the bright-line rule: the attorney-client privilege survives the client's death, with no balancing test.
- Understand the narrow testamentary exception: the privilege may yield in disputes among the client's heirs about the client's testamentary intent.
- Be able to articulate the policy rationale: clients must trust that their communications will remain confidential even after death.
- Distinguish this case from situations where the crime-fraud exception might apply regardless of the client's death.
Read the Full Case Analysis
View the complete brief for Swidler & Berlin v. United States including full reasoning, doctrine, and study resources.
More Evidence Dissents
Daubert v. Merrell Dow Pharmaceuticals, Inc.
509 U.S. 579 (1993) (1993)
Chief Justice Rehnquist, joined by Justice Stevens, concurred in part and dissented in part. He agreed that Frye was superseded but criticized the majority for going beyond the question presented and issuing abstract guidelines. He expressed concern that the majority's factors were vague and would prove difficult for trial judges to apply in practice.
Crawford v. Washington
541 U.S. 36 (2004) (2004)
Chief Justice Rehnquist, joined by Justice O'Connor, concurred in the judgment but objected to overruling Roberts. He argued that the Roberts framework was workable and that the majority's testimonial approach would create significant uncertainty about what constitutes a 'testimonial' statement.
Davis v. Washington
547 U.S. 813 (2006) (2006)
Justice Thomas concurred in the judgment in Davis but dissented in Hammon, arguing that the primary purpose test was too broad and that only statements involving a degree of formality and solemnity -- such as affidavits, depositions, and prior testimony -- should be considered testimonial.
Ohio v. Roberts
448 U.S. 56 (1980) (1980)
Justice Brennan, joined by Justice Marshall, dissented, arguing that the prosecution had not made a sufficient showing of unavailability. They contended the prosecution's efforts to locate Isaacs were inadequate, failing to check with her employer, school, or other contacts beyond her parents.
Bruton v. United States
391 U.S. 123 (1968) (1968)
Justice White, joined by Justice Harlan, dissented, arguing that the majority underestimated the jury's ability to follow limiting instructions and that the decision would create practical problems for joint trials. He proposed that redaction of the confession to remove the defendant's name would provide adequate protection.
Tome v. United States
513 U.S. 150 (1995) (1995)
Justice Breyer, joined by Chief Justice Rehnquist and Justices O'Connor and Thomas, dissented. He argued that the text of Rule 801(d)(1)(B) does not impose a premotive requirement and that the rule should be read to permit the admission of any prior consistent statement that is relevant to rebut a charge of fabrication, regardless of when it was made.