Swidler & Berlin v. United States
Doctrine Established:Posthumous Attorney-Client Privilege
Why is Swidler & Berlin v. United States significant?
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.
Source: Read Swidler & Berlin v. United States on Google Scholar
Why This Case Matters
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.
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.
Procedural History
The district court quashed the subpoena, holding the privilege survived Foster's death. The D.C. Circuit reversed, creating a balancing test for posthumous privilege claims in criminal cases. The Supreme Court reversed the D.C. Circuit.
Issue
Whether the attorney-client privilege survives the death of the client, particularly when the communications are sought in connection with a criminal investigation.
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.
Reasoning & Analysis
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.
Dissent
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.”
Legacy & Impact
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
- 1Know the bright-line rule: the attorney-client privilege survives the client's death, with no balancing test.
- 2Understand the narrow testamentary exception: the privilege may yield in disputes among the client's heirs about the client's testamentary intent.
- 3Be able to articulate the policy rationale: clients must trust that their communications will remain confidential even after death.
- 4Distinguish this case from situations where the crime-fraud exception might apply regardless of the client's death.