Swidler & Berlin v. United States

Supreme Court of the United States · 1998 · Evidence

EvidenceAttorney-client privilegeattorney-client privilegeposthumous privilegeconfidential communicationsRule 501grand jury subpoenatestamentary exception

Facts

Attorney James Hamilton met for about two hours with Vincent Foster in July 1993 after Foster sought legal representation concerning possible investigations into the White House Travel Office firings. Hamilton took three pages of handwritten notes during the meeting, and one of the first entries was the word "Privileged." Nine days later, Foster died by suicide. In 1995, a federal grand jury, at the request of the Independent Counsel, subpoenaed Hamilton and Swidler & Berlin for the notes for use in a criminal investigation.

Issue

Does the attorney-client privilege prevent disclosure of confidential attorney-client communications after the client's death when the Government seeks them for use in a criminal investigation? More specifically, should there be a posthumous exception or balancing test for attorney-client privilege in such circumstances?

Rule

Under Federal Rule of Evidence 501, the attorney-client privilege generally survives the death of the client. In the absence of a sufficient showing that reason and experience require departure from the common-law rule, courts may not create a general posthumous exception or ex post balancing test for disclosure of confidential attorney-client communications in criminal cases.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Denver, attorney Nina Sethi met privately with her client, Aaron Pike, to discuss possible legal exposure arising from statements he had made during an internal workplace inquiry. Sethi took detailed notes during the consultation. Two weeks later, Pike died, and a federal grand jury subpoenaed Sethi's notes for use in a criminal investigation.

Should the court require Sethi to produce the notes?

Explanation. Under Rule 501, the majority held that the attorney-client privilege generally survives the client's death. It rejected a general posthumous exception for criminal investigations and refused to allow disclosure simply because the evidence is sought by a grand jury. The Court resolved the case on attorney-client privilege and did not rely on any categorical work-product rule.