SWIDLER & BERLIN v. UNITED STATES


Syllabus

SWIDLER & BERLIN v. UNITED STATES ( No. 97-1192 )
124 F. 3d 230, reversed.

SWIDLER & BERLIN et al. v. UNITED STATES

certiorari to the united states court of appeals for the district of columbia circuit


No. 97–1192. Argued June 8, 1998—Decided June 25, 1998

When various investigations of the 1993 dismissal of White House Travel Office employees were beginning, Deputy White House Counsel Vincent W. Foster, Jr., met with petitioner Hamilton, an attorney at petitioner law firm, to seek legal representation. Hamilton took handwritten notes at their meeting. Nine days later, Foster committed suicide. Subsequently, a federal grand jury, at the Independent Counsel’s request, issued subpoenas for, inter alia , the handwritten notes as part of an investigation into whether crimes were committed during the prior investigations into the firings. Petitioners moved to quash, arguing, among other things, that the notes were protected by the attorney-client privilege. The District Court agreed and denied enforcement of the subpoenas. In reversing, the Court of Appeals recognized that most courts assume the privilege survives death, but noted that such references usually occur in the context of the well-recognized testamentary exception to the privilege allowing disclosure for disputes among the client’s heirs. The court declared that the risk of posthumous revelation, when confined to the criminal context, would have little to no chilling effect on client communication, but that the costs of protecting communications after death were high. Concluding that the privilege is not absolute in such circumstances, and that instead, a balancing test should apply, the court held that there is a posthumous exception to the privilege for communications whose relative importance to particular criminal litigation is substantial.

Held : Petitioner’s notes are protected by the attorney-client privilege. This Court’s inquiry must be guided by “the principles of the common law … as interpreted by the courts … in light of reason and experience.” Fed. Rule Evid. 501. The relevant case law demonstrates that it has been overwhelmingly, if not universally, accepted, for well over a century, that the privilege survives the client’s death in a case such as this. While the Independent Counsel’s arguments against the privilege’s posthumous survival are not frivolous, he has simply not satisfied his burden of showing that “reason and experience” require a departure from the common-law rule. His interpretation—that the testamentary exception supports the privilege’s posthumous termination because in practice most cases have refused to apply the privilege posthumously; that the exception reflects a policy judgment that the interest in settling estates outweighs any posthumous interest in confidentiality; and that, by analogy, the interest in determining whether a crime has been committed should trump client confidentiality, particularly since the estate’s financial interests are not at stake—does not square with the case law’s implicit acceptance of the privilege’s survival and with its treatment of testamentary disclosure as an “exception” or an implied “waiver.” And his analogy’s premise is incorrect, since cases have consistently recognized that the testamentary exception furthers the client’s intent, whereas there is no reason to suppose the same is true with respect to grand jury testimony about confidential communications. Knowing that communications will remain confidential even after death serves a weighty interest in encouraging a client to communicate fully and frankly with counsel; posthumous disclosure of such communications may be as feared as disclosure during the client’s lifetime. The Independent Counsel’s suggestion that a posthumous disclosure rule will chill only clients intent on perjury, not truthful clients or those asserting the Fifth Amendment, incorrectly equates the privilege against self-incrimination with the privilege here at issue, which serves much broader purposes. Clients consult attorneys for a wide variety of reasons, many of which involve confidences that are not admissions of crime, but nonetheless are matters the clients would not wish divulged. The suggestion that the proposed exception would have minimal impact if confined to criminal cases, or to information of substantial importance in particular criminal cases, is unavailing because there is no case law holding that the privilege applies differently in criminal and civil cases, and because a client may not know when he discloses information to his attorney whether it will later be relevant to a civil or criminal matter, let alone whether it will be of substantial importance. Balancing ex post the importance of the information against client interests, even limited to criminal cases, introduces substantial uncertainty into the privilege’s application and therefore must be rejected. The argument that the existence of, e.g., the crime-fraud and testamentary exceptions to the privilege makes the impact of one more exception marginal fails because there is little empirical evidence to support it, and because the established exceptions, unlike the proposed exception, are consistent with the privilege’s purposes. Indications in United States v. Nixon, 418 U. S. 683, and Branzburg v. Hayes , 408 U. S. 665, that privileges must be strictly construed as inconsistent with truth seeking are inapposite here, since those cases dealt with the creation of privileges not recognized by the common law, whereas here, the Independent Counsel seeks to narrow a well-established privilege. Pp. 3–11.

124 F. 3d 230, reversed.

Rehnquist, C. J., delivered the opinion of the Court, in which Stevens, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. O’Connor, J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined.


TOP

Dissent

SWIDLER & BERLIN and JAMES HAMILTON,
PETITIONERS v. UNITED STATES

on writ of certiorari to the united states court of appeals for the district of columbia circuit


[June 25, 1998]

Justice O’Connor , with whom Justice Scalia and Justice Thomas join, dissenting.

Although the attorney-client privilege ordinarily will survive the death of the client, I do not agree with the Court that it inevitably precludes disclosure of a deceased client’s communications in criminal proceedings. In my view, a criminal defendant’s right to exculpatory evidence or a compelling law enforcement need for informa- tion may, where the testimony is not available from other sources, override a client’s posthumous interest in confidentiality.

We have long recognized that “[t]he fundamental basis upon which all rules of evidence must rest—if they are to rest upon reason—is their adaptation to the successful development of the truth.” Funk v. United States, 290 U. S. 371, 381 (1933) . In light of the heavy burden that they place on the search for truth, see United States v. Nixon, 418 U. S. 683, 708–710 (1974) , “[e]videntiary privileges in litigation are not favored, and even those rooted in the Constitution must give way in proper circumstances,” Herbert v. Lando, 441 U. S. 153, 175 (1979) . Consequently, we construe the scope of privileges narrowly. See Jaffee v. Redmond, 518 U. S. 1, 19 (1996) ( Scalia , J., dissenting); see also University of Pennsylvania v. EEOC, 493 U. S. 182, 189 (1990) . We are reluctant to recognize a privilege or read an existing one expansively unless to do so will serve a “public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.” Trammel v. United States, 445 U. S. 40, 50 (1980) (internal quotation marks omitted).

The attorney-client privilege promotes trust in the representational relationship, thereby facilitating the provision of legal services and ultimately the administration of justice. See Upjohn Co. v. United States, 449 U. S. 383, 389 (1981) . The systemic benefits of the privilege are commonly understood to outweigh the harm caused by excluding critical evidence. A privilege should operate, however, only where “necessary to achieve its purpose,” see Fisher v. United States, 425 U. S. 391, 403 (1976) , and an invocation of the attorney-client privilege should not go unexamined “when it is shown that the interests of the administration of justice can only be frustrated by [its] exercise,” Cohen v. Jenkintown Cab Co. , 238 Pa. Super. 456, 464, 357 A. 2d 689, 693–694 (1976).

I agree that a deceased client may retain a personal, reputational, and economic interest in confidentiality. See ante , at 7. But, after death, the potential that disclosure will harm the client’s interests has been greatly diminished, and the risk that the client will be held criminally liable has abated altogether. Thus, some commentators suggest that terminating the privilege upon the client’s death “could not to any substantial degree lessen the encouragement for free disclosure which is [its] purpose.” 1 J. Strong, McCormick on Evidence §94, p. 350 (4th ed. 1992); see also Restatement (Third) of the Law Governing Lawyers §127, Comment d (Proposed Final Draft No. 1, Mar. 29, 1996). This diminished risk is coupled with a heightened urgency for discovery of a deceased client’s communications in the criminal context. The privilege does not “protect[] disclosure of the underlying facts by those who communicated with the attorney,” Upjohn , supra , at 395, and were the client living, prosecutors could grant immunity and compel the relevant testimony. After a client’s death, however, if the privilege precludes an attorney from testifying in the client’s stead, a complete “loss of crucial information” will often result, see 24 C. Wright & K. Graham, Federal Practice and Procedure §5498, p. 484 (1986).

As the Court of Appeals observed, the costs of recognizing an absolute posthumous privilege can be inordinately high. See In re Sealed Case , 124 F. 3d 230, 233–234 (CADC 1997). Extreme injustice may occur, for example, where a criminal defendant seeks disclosure of a deceased client’s confession to the offense. See State v. Macumber , 112 Ariz. 569, 571, 544 P. 2d 1084, 1086 (1976); cf. In the Matter of a John Doe Grand Jury Investigation , 408 Mass. 480, 486, 562 N. E. 2d 69, 72 (1990) (Nolan, J., dissenting). In my view, the paramount value that our criminal justice system places on protecting an innocent defendant should outweigh a deceased client’s interest in preserving confidences. See, e.g. , Schlup v. Delo, 513 U. S. 298, 324–325 (1995) ; In re Winship, 397 U. S. 358, 371 (1970) (Harlan, J., concurring). Indeed, even petitioner acknowledges that an exception may be appropriate where the constitutional rights of a criminal defendant are at stake. An exception may likewise be warranted in the face of a compelling law enforcement need for the information. “[O]ur historic commitment to the rule of law … is nowhere more profoundly manifest than in our view that the twofold aim of criminal justice is that guilt shall not escape or innocence suffer.” Nixon , supra , at 709 (internal quotation marks omitted); see also Herrera v. Collins, 506 U. S. 390, 398 (1993) . Given that the complete exclusion of relevant evidence from a criminal trial or investigation may distort the record, mislead the factfinder, and undermine the central truth-seeking function of the courts, I do not believe that the attorney-client privilege should act as an absolute bar to the disclosure of a deceased client’s communications. When the privilege is asserted in the criminal context, and a showing is made that the communications at issue contain necessary factual information not otherwise available, courts should be permitted to assess whether interests in fairness and accuracy outweigh the justifications for the privilege.

A number of exceptions to the privilege already qualify its protections, and an attorney “who tells his client that the expected communications are absolutely and forever privileged is oversimplifying a bit.” 124 F. 3d, at 235. In the situation where the posthumous privilege most frequently arises—a dispute between heirs over the decedent’s will—the privilege is widely recognized to give way to the interest in settling the estate. See Glover v. Patten, 165 U. S. 394, 406–408 (1897) . This testamentary exception, moreover, may be invoked in some cases where the decedent would not have chosen to waive the privilege. For example, “a decedent might want to provide for an illegitimate child but at the same time much prefer that the relationship go undisclosed.” 124 F. 3d, at 234. Among the Court’s rationales for a broad construction of the posthumous privilege is its assertion that “[m]any attorneys act as counselors on personal and family matters, where, in the course of obtaining the desired advice, confidences about family members or financial problems must be revealed . . . which the client would not wish divulged.” Ante , at 8. That reasoning, however, would apply in the testamentary context with equal force. Nor are other existing exceptions to the privilege—for example, the crime-fraud exception or the exceptions for claims relating to attorney competence or compensation—necessarily consistent with “encouraging full and frank communication” or “protecting the client’s interests,” ante , at 10. Rather, those exceptions reflect the understanding that, in certain circumstances, the privilege “ ‘ceases to operate’ ” as a safeguard on “the proper functioning of our adversary system.” See United States v. Zolin, 491 U. S. 554, 562–563 (1989) .

Finally, the common law authority for the proposition that the privilege remains absolute after the client’s death is not a monolithic body of precedent. Indeed, the Court acknowledges that most cases merely “presume the privilege survives,” see ante , at 4–5, and it relies on the case law’s “implicit acceptance” of a continuous privilege, see ante , at 6. Opinions squarely addressing the posthumous force of the privilege “are relatively rare.” See 124 F. 3d, at 232. And even in those decisions expressly holding that the privilege continues after the death of the client, courts do not typically engage in detailed reasoning, but rather conclude that the cases construing the testamentary exception imply survival of the privilege. See, e.g. , Glover , supra , at 406–408; see also Wright & Graham, supra , §5498, at 484 (“Those who favor an eternal duration for the privilege seldom do much by way of justifying this in terms of policy”).

Moreover, as the Court concedes, see ante , at 4, 6, there is some authority for the proposition that a deceased client’s communications may be revealed, even in circumstances outside of the testamentary context. California’s Evidence Code, for example, provides that the attorney-client privilege continues only until the deceased client’s estate is finally distributed, noting that “there is little reason to preserve secrecy at the expense of excluding relevant evidence after the estate is wound up and the representative is discharged.” Cal. Evid. Code Ann. §954, and comment, p. 232, §952 (West 1995). And a state appellate court has admitted an attorney’s testimony concerning a deceased client’s communications after “balanc[ing] the necessity for revealing the substance of the [attorney-client conversation] against the unlikelihood of any cognizable injury to the rights, interests, estate or memory of [the client].” See Cohen , supra , at 464, 357 A. 2d, at 693. The American Law Institute, moreover, has recently recommended withholding the privilege when the communication “bears on a litigated issue of pivotal significance” and has suggested that courts “balance the interest in confidentiality against any exceptional need for the communication.” Restatement (Third) of the Law Governing Lawyers §127, at 431, Comment d ; see also 2 C. Mueller & L. Kirkpatrick, Federal Evidence, §199, p. 380 (2d ed. 1994) (“[I]f a deceased client has confessed to criminal acts that are later charged to another, surely the latter’s need for evidence sometimes outweighs the interest in preserving the confidences”).

Where the exoneration of an innocent criminal defendant or a compelling law enforcement interest is at stake, the harm of precluding critical evidence that is unavailable by any other means outweighs the potential disincentive to forthright communication. In my view, the cost of silence warrants a narrow exception to the rule that the attorney-client privilege survives the death of the client. Moreover, although I disagree with the Court of Appeals’ notion that the context of an initial client interview affects the applicability of the work product doctrine, I do not believe that the doctrine applies where the material concerns a client who is no longer a potential party to adversarial litigation.

Accordingly, I would affirm the judgment of the Court of Appeals. Although the District Court examined the documents in camera , it has not had an opportunity to balance these competing considerations and decide whether the privilege should be trumped in the particular circumstances of this case. Thus, I agree with the Court of Appeals’ decision to remand for a determination whether any portion of the notes must be disclosed.

With respect, I dissent.


TOP

Dissent

SWIDLER & BERLIN and JAMES HAMILTON,
PETITIONERS v. UNITED STATES

on writ of certiorari to the united states court of appeals for the district of columbia circuit


[June 25, 1998]

Justice O’Connor , with whom Justice Scalia and Justice Thomas join, dissenting.

Although the attorney-client privilege ordinarily will survive the death of the client, I do not agree with the Court that it inevitably precludes disclosure of a deceased client’s communications in criminal proceedings. In my view, a criminal defendant’s right to exculpatory evidence or a compelling law enforcement need for informa- tion may, where the testimony is not available from other sources, override a client’s posthumous interest in confidentiality.

We have long recognized that “[t]he fundamental basis upon which all rules of evidence must rest—if they are to rest upon reason—is their adaptation to the successful development of the truth.” Funk v. United States, 290 U. S. 371, 381 (1933) . In light of the heavy burden that they place on the search for truth, see United States v. Nixon, 418 U. S. 683, 708–710 (1974) , “[e]videntiary privileges in litigation are not favored, and even those rooted in the Constitution must give way in proper circumstances,” Herbert v. Lando, 441 U. S. 153, 175 (1979) . Consequently, we construe the scope of privileges narrowly. See Jaffee v. Redmond, 518 U. S. 1, 19 (1996) ( Scalia , J., dissenting); see also University of Pennsylvania v. EEOC, 493 U. S. 182, 189 (1990) . We are reluctant to recognize a privilege or read an existing one expansively unless to do so will serve a “public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.” Trammel v. United States, 445 U. S. 40, 50 (1980) (internal quotation marks omitted).

The attorney-client privilege promotes trust in the representational relationship, thereby facilitating the provision of legal services and ultimately the administration of justice. See Upjohn Co. v. United States, 449 U. S. 383, 389 (1981) . The systemic benefits of the privilege are commonly understood to outweigh the harm caused by excluding critical evidence. A privilege should operate, however, only where “necessary to achieve its purpose,” see Fisher v. United States, 425 U. S. 391, 403 (1976) , and an invocation of the attorney-client privilege should not go unexamined “when it is shown that the interests of the administration of justice can only be frustrated by [its] exercise,” Cohen v. Jenkintown Cab Co. , 238 Pa. Super. 456, 464, 357 A. 2d 689, 693–694 (1976).

I agree that a deceased client may retain a personal, reputational, and economic interest in confidentiality. See ante , at 7. But, after death, the potential that disclosure will harm the client’s interests has been greatly diminished, and the risk that the client will be held criminally liable has abated altogether. Thus, some commentators suggest that terminating the privilege upon the client’s death “could not to any substantial degree lessen the encouragement for free disclosure which is [its] purpose.” 1 J. Strong, McCormick on Evidence §94, p. 350 (4th ed. 1992); see also Restatement (Third) of the Law Governing Lawyers §127, Comment d (Proposed Final Draft No. 1, Mar. 29, 1996). This diminished risk is coupled with a heightened urgency for discovery of a deceased client’s communications in the criminal context. The privilege does not “protect[] disclosure of the underlying facts by those who communicated with the attorney,” Upjohn , supra , at 395, and were the client living, prosecutors could grant immunity and compel the relevant testimony. After a client’s death, however, if the privilege precludes an attorney from testifying in the client’s stead, a complete “loss of crucial information” will often result, see 24 C. Wright & K. Graham, Federal Practice and Procedure §5498, p. 484 (1986).

As the Court of Appeals observed, the costs of recognizing an absolute posthumous privilege can be inordinately high. See In re Sealed Case , 124 F. 3d 230, 233–234 (CADC 1997). Extreme injustice may occur, for example, where a criminal defendant seeks disclosure of a deceased client’s confession to the offense. See State v. Macumber , 112 Ariz. 569, 571, 544 P. 2d 1084, 1086 (1976); cf. In the Matter of a John Doe Grand Jury Investigation , 408 Mass. 480, 486, 562 N. E. 2d 69, 72 (1990) (Nolan, J., dissenting). In my view, the paramount value that our criminal justice system places on protecting an innocent defendant should outweigh a deceased client’s interest in preserving confidences. See, e.g. , Schlup v. Delo, 513 U. S. 298, 324–325 (1995) ; In re Winship, 397 U. S. 358, 371 (1970) (Harlan, J., concurring). Indeed, even petitioner acknowledges that an exception may be appropriate where the constitutional rights of a criminal defendant are at stake. An exception may likewise be warranted in the face of a compelling law enforcement need for the information. “[O]ur historic commitment to the rule of law … is nowhere more profoundly manifest than in our view that the twofold aim of criminal justice is that guilt shall not escape or innocence suffer.” Nixon , supra , at 709 (internal quotation marks omitted); see also Herrera v. Collins, 506 U. S. 390, 398 (1993) . Given that the complete exclusion of relevant evidence from a criminal trial or investigation may distort the record, mislead the factfinder, and undermine the central truth-seeking function of the courts, I do not believe that the attorney-client privilege should act as an absolute bar to the disclosure of a deceased client’s communications. When the privilege is asserted in the criminal context, and a showing is made that the communications at issue contain necessary factual information not otherwise available, courts should be permitted to assess whether interests in fairness and accuracy outweigh the justifications for the privilege.

A number of exceptions to the privilege already qualify its protections, and an attorney “who tells his client that the expected communications are absolutely and forever privileged is oversimplifying a bit.” 124 F. 3d, at 235. In the situation where the posthumous privilege most frequently arises—a dispute between heirs over the decedent’s will—the privilege is widely recognized to give way to the interest in settling the estate. See Glover v. Patten, 165 U. S. 394, 406–408 (1897) . This testamentary exception, moreover, may be invoked in some cases where the decedent would not have chosen to waive the privilege. For example, “a decedent might want to provide for an illegitimate child but at the same time much prefer that the relationship go undisclosed.” 124 F. 3d, at 234. Among the Court’s rationales for a broad construction of the posthumous privilege is its assertion that “[m]any attorneys act as counselors on personal and family matters, where, in the course of obtaining the desired advice, confidences about family members or financial problems must be revealed . . . which the client would not wish divulged.” Ante , at 8. That reasoning, however, would apply in the testamentary context with equal force. Nor are other existing exceptions to the privilege—for example, the crime-fraud exception or the exceptions for claims relating to attorney competence or compensation—necessarily consistent with “encouraging full and frank communication” or “protecting the client’s interests,” ante , at 10. Rather, those exceptions reflect the understanding that, in certain circumstances, the privilege “ ‘ceases to operate’ ” as a safeguard on “the proper functioning of our adversary system.” See United States v. Zolin, 491 U. S. 554, 562–563 (1989) .

Finally, the common law authority for the proposition that the privilege remains absolute after the client’s death is not a monolithic body of precedent. Indeed, the Court acknowledges that most cases merely “presume the privilege survives,” see ante , at 4–5, and it relies on the case law’s “implicit acceptance” of a continuous privilege, see ante , at 6. Opinions squarely addressing the posthumous force of the privilege “are relatively rare.” See 124 F. 3d, at 232. And even in those decisions expressly holding that the privilege continues after the death of the client, courts do not typically engage in detailed reasoning, but rather conclude that the cases construing the testamentary exception imply survival of the privilege. See, e.g. , Glover , supra , at 406–408; see also Wright & Graham, supra , §5498, at 484 (“Those who favor an eternal duration for the privilege seldom do much by way of justifying this in terms of policy”).

Moreover, as the Court concedes, see ante , at 4, 6, there is some authority for the proposition that a deceased client’s communications may be revealed, even in circumstances outside of the testamentary context. California’s Evidence Code, for example, provides that the attorney-client privilege continues only until the deceased client’s estate is finally distributed, noting that “there is little reason to preserve secrecy at the expense of excluding relevant evidence after the estate is wound up and the representative is discharged.” Cal. Evid. Code Ann. §954, and comment, p. 232, §952 (West 1995). And a state appellate court has admitted an attorney’s testimony concerning a deceased client’s communications after “balanc[ing] the necessity for revealing the substance of the [attorney-client conversation] against the unlikelihood of any cognizable injury to the rights, interests, estate or memory of [the client].” See Cohen , supra , at 464, 357 A. 2d, at 693. The American Law Institute, moreover, has recently recommended withholding the privilege when the communication “bears on a litigated issue of pivotal significance” and has suggested that courts “balance the interest in confidentiality against any exceptional need for the communication.” Restatement (Third) of the Law Governing Lawyers §127, at 431, Comment d ; see also 2 C. Mueller & L. Kirkpatrick, Federal Evidence, §199, p. 380 (2d ed. 1994) (“[I]f a deceased client has confessed to criminal acts that are later charged to another, surely the latter’s need for evidence sometimes outweighs the interest in preserving the confidences”).

Where the exoneration of an innocent criminal defendant or a compelling law enforcement interest is at stake, the harm of precluding critical evidence that is unavailable by any other means outweighs the potential disincentive to forthright communication. In my view, the cost of silence warrants a narrow exception to the rule that the attorney-client privilege survives the death of the client. Moreover, although I disagree with the Court of Appeals’ notion that the context of an initial client interview affects the applicability of the work product doctrine, I do not believe that the doctrine applies where the material concerns a client who is no longer a potential party to adversarial litigation.

Accordingly, I would affirm the judgment of the Court of Appeals. Although the District Court examined the documents in camera , it has not had an opportunity to balance these competing considerations and decide whether the privilege should be trumped in the particular circumstances of this case. Thus, I agree with the Court of Appeals’ decision to remand for a determination whether any portion of the notes must be disclosed.

With respect, I dissent.


TOP

Dissent

SWIDLER & BERLIN and JAMES HAMILTON,
PETITIONERS v. UNITED STATES

on writ of certiorari to the united states court of appeals for the district of columbia circuit


[June 25, 1998]

Justice O’Connor , with whom Justice Scalia and Justice Thomas join, dissenting.

Although the attorney-client privilege ordinarily will survive the death of the client, I do not agree with the Court that it inevitably precludes disclosure of a deceased client’s communications in criminal proceedings. In my view, a criminal defendant’s right to exculpatory evidence or a compelling law enforcement need for informa- tion may, where the testimony is not available from other sources, override a client’s posthumous interest in confidentiality.

We have long recognized that “[t]he fundamental basis upon which all rules of evidence must rest—if they are to rest upon reason—is their adaptation to the successful development of the truth.” Funk v. United States, 290 U. S. 371, 381 (1933) . In light of the heavy burden that they place on the search for truth, see United States v. Nixon, 418 U. S. 683, 708–710 (1974) , “[e]videntiary privileges in litigation are not favored, and even those rooted in the Constitution must give way in proper circumstances,” Herbert v. Lando, 441 U. S. 153, 175 (1979) . Consequently, we construe the scope of privileges narrowly. See Jaffee v. Redmond, 518 U. S. 1, 19 (1996) ( Scalia , J., dissenting); see also University of Pennsylvania v. EEOC, 493 U. S. 182, 189 (1990) . We are reluctant to recognize a privilege or read an existing one expansively unless to do so will serve a “public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.” Trammel v. United States, 445 U. S. 40, 50 (1980) (internal quotation marks omitted).

The attorney-client privilege promotes trust in the representational relationship, thereby facilitating the provision of legal services and ultimately the administration of justice. See Upjohn Co. v. United States, 449 U. S. 383, 389 (1981) . The systemic benefits of the privilege are commonly understood to outweigh the harm caused by excluding critical evidence. A privilege should operate, however, only where “necessary to achieve its purpose,” see Fisher v. United States, 425 U. S. 391, 403 (1976) , and an invocation of the attorney-client privilege should not go unexamined “when it is shown that the interests of the administration of justice can only be frustrated by [its] exercise,” Cohen v. Jenkintown Cab Co. , 238 Pa. Super. 456, 464, 357 A. 2d 689, 693–694 (1976).

I agree that a deceased client may retain a personal, reputational, and economic interest in confidentiality. See ante , at 7. But, after death, the potential that disclosure will harm the client’s interests has been greatly diminished, and the risk that the client will be held criminally liable has abated altogether. Thus, some commentators suggest that terminating the privilege upon the client’s death “could not to any substantial degree lessen the encouragement for free disclosure which is [its] purpose.” 1 J. Strong, McCormick on Evidence §94, p. 350 (4th ed. 1992); see also Restatement (Third) of the Law Governing Lawyers §127, Comment d (Proposed Final Draft No. 1, Mar. 29, 1996). This diminished risk is coupled with a heightened urgency for discovery of a deceased client’s communications in the criminal context. The privilege does not “protect[] disclosure of the underlying facts by those who communicated with the attorney,” Upjohn , supra , at 395, and were the client living, prosecutors could grant immunity and compel the relevant testimony. After a client’s death, however, if the privilege precludes an attorney from testifying in the client’s stead, a complete “loss of crucial information” will often result, see 24 C. Wright & K. Graham, Federal Practice and Procedure §5498, p. 484 (1986).

As the Court of Appeals observed, the costs of recognizing an absolute posthumous privilege can be inordinately high. See In re Sealed Case , 124 F. 3d 230, 233–234 (CADC 1997). Extreme injustice may occur, for example, where a criminal defendant seeks disclosure of a deceased client’s confession to the offense. See State v. Macumber , 112 Ariz. 569, 571, 544 P. 2d 1084, 1086 (1976); cf. In the Matter of a John Doe Grand Jury Investigation , 408 Mass. 480, 486, 562 N. E. 2d 69, 72 (1990) (Nolan, J., dissenting). In my view, the paramount value that our criminal justice system places on protecting an innocent defendant should outweigh a deceased client’s interest in preserving confidences. See, e.g. , Schlup v. Delo, 513 U. S. 298, 324–325 (1995) ; In re Winship, 397 U. S. 358, 371 (1970) (Harlan, J., concurring). Indeed, even petitioner acknowledges that an exception may be appropriate where the constitutional rights of a criminal defendant are at stake. An exception may likewise be warranted in the face of a compelling law enforcement need for the information. “[O]ur historic commitment to the rule of law … is nowhere more profoundly manifest than in our view that the twofold aim of criminal justice is that guilt shall not escape or innocence suffer.” Nixon , supra , at 709 (internal quotation marks omitted); see also Herrera v. Collins, 506 U. S. 390, 398 (1993) . Given that the complete exclusion of relevant evidence from a criminal trial or investigation may distort the record, mislead the factfinder, and undermine the central truth-seeking function of the courts, I do not believe that the attorney-client privilege should act as an absolute bar to the disclosure of a deceased client’s communications. When the privilege is asserted in the criminal context, and a showing is made that the communications at issue contain necessary factual information not otherwise available, courts should be permitted to assess whether interests in fairness and accuracy outweigh the justifications for the privilege.

A number of exceptions to the privilege already qualify its protections, and an attorney “who tells his client that the expected communications are absolutely and forever privileged is oversimplifying a bit.” 124 F. 3d, at 235. In the situation where the posthumous privilege most frequently arises—a dispute between heirs over the decedent’s will—the privilege is widely recognized to give way to the interest in settling the estate. See Glover v. Patten, 165 U. S. 394, 406–408 (1897) . This testamentary exception, moreover, may be invoked in some cases where the decedent would not have chosen to waive the privilege. For example, “a decedent might want to provide for an illegitimate child but at the same time much prefer that the relationship go undisclosed.” 124 F. 3d, at 234. Among the Court’s rationales for a broad construction of the posthumous privilege is its assertion that “[m]any attorneys act as counselors on personal and family matters, where, in the course of obtaining the desired advice, confidences about family members or financial problems must be revealed . . . which the client would not wish divulged.” Ante , at 8. That reasoning, however, would apply in the testamentary context with equal force. Nor are other existing exceptions to the privilege—for example, the crime-fraud exception or the exceptions for claims relating to attorney competence or compensation—necessarily consistent with “encouraging full and frank communication” or “protecting the client’s interests,” ante , at 10. Rather, those exceptions reflect the understanding that, in certain circumstances, the privilege “ ‘ceases to operate’ ” as a safeguard on “the proper functioning of our adversary system.” See United States v. Zolin, 491 U. S. 554, 562–563 (1989) .

Finally, the common law authority for the proposition that the privilege remains absolute after the client’s death is not a monolithic body of precedent. Indeed, the Court acknowledges that most cases merely “presume the privilege survives,” see ante , at 4–5, and it relies on the case law’s “implicit acceptance” of a continuous privilege, see ante , at 6. Opinions squarely addressing the posthumous force of the privilege “are relatively rare.” See 124 F. 3d, at 232. And even in those decisions expressly holding that the privilege continues after the death of the client, courts do not typically engage in detailed reasoning, but rather conclude that the cases construing the testamentary exception imply survival of the privilege. See, e.g. , Glover , supra , at 406–408; see also Wright & Graham, supra , §5498, at 484 (“Those who favor an eternal duration for the privilege seldom do much by way of justifying this in terms of policy”).

Moreover, as the Court concedes, see ante , at 4, 6, there is some authority for the proposition that a deceased client’s communications may be revealed, even in circumstances outside of the testamentary context. California’s Evidence Code, for example, provides that the attorney-client privilege continues only until the deceased client’s estate is finally distributed, noting that “there is little reason to preserve secrecy at the expense of excluding relevant evidence after the estate is wound up and the representative is discharged.” Cal. Evid. Code Ann. §954, and comment, p. 232, §952 (West 1995). And a state appellate court has admitted an attorney’s testimony concerning a deceased client’s communications after “balanc[ing] the necessity for revealing the substance of the [attorney-client conversation] against the unlikelihood of any cognizable injury to the rights, interests, estate or memory of [the client].” See Cohen , supra , at 464, 357 A. 2d, at 693. The American Law Institute, moreover, has recently recommended withholding the privilege when the communication “bears on a litigated issue of pivotal significance” and has suggested that courts “balance the interest in confidentiality against any exceptional need for the communication.” Restatement (Third) of the Law Governing Lawyers §127, at 431, Comment d ; see also 2 C. Mueller & L. Kirkpatrick, Federal Evidence, §199, p. 380 (2d ed. 1994) (“[I]f a deceased client has confessed to criminal acts that are later charged to another, surely the latter’s need for evidence sometimes outweighs the interest in preserving the confidences”).

Where the exoneration of an innocent criminal defendant or a compelling law enforcement interest is at stake, the harm of precluding critical evidence that is unavailable by any other means outweighs the potential disincentive to forthright communication. In my view, the cost of silence warrants a narrow exception to the rule that the attorney-client privilege survives the death of the client. Moreover, although I disagree with the Court of Appeals’ notion that the context of an initial client interview affects the applicability of the work product doctrine, I do not believe that the doctrine applies where the material concerns a client who is no longer a potential party to adversarial litigation.

Accordingly, I would affirm the judgment of the Court of Appeals. Although the District Court examined the documents in camera , it has not had an opportunity to balance these competing considerations and decide whether the privilege should be trumped in the particular circumstances of this case. Thus, I agree with the Court of Appeals’ decision to remand for a determination whether any portion of the notes must be disclosed.

With respect, I dissent.


TOP

Dissent

SWIDLER & BERLIN and JAMES HAMILTON,
PETITIONERS v. UNITED STATES

on writ of certiorari to the united states court of appeals for the district of columbia circuit


[June 25, 1998]

Justice O’Connor , with whom Justice Scalia and Justice Thomas join, dissenting.

Although the attorney-client privilege ordinarily will survive the death of the client, I do not agree with the Court that it inevitably precludes disclosure of a deceased client’s communications in criminal proceedings. In my view, a criminal defendant’s right to exculpatory evidence or a compelling law enforcement need for informa- tion may, where the testimony is not available from other sources, override a client’s posthumous interest in confidentiality.

We have long recognized that “[t]he fundamental basis upon which all rules of evidence must rest—if they are to rest upon reason—is their adaptation to the successful development of the truth.” Funk v. United States, 290 U. S. 371, 381 (1933) . In light of the heavy burden that they place on the search for truth, see United States v. Nixon, 418 U. S. 683, 708–710 (1974) , “[e]videntiary privileges in litigation are not favored, and even those rooted in the Constitution must give way in proper circumstances,” Herbert v. Lando, 441 U. S. 153, 175 (1979) . Consequently, we construe the scope of privileges narrowly. See Jaffee v. Redmond, 518 U. S. 1, 19 (1996) ( Scalia , J., dissenting); see also University of Pennsylvania v. EEOC, 493 U. S. 182, 189 (1990) . We are reluctant to recognize a privilege or read an existing one expansively unless to do so will serve a “public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.” Trammel v. United States, 445 U. S. 40, 50 (1980) (internal quotation marks omitted).

The attorney-client privilege promotes trust in the representational relationship, thereby facilitating the provision of legal services and ultimately the administration of justice. See Upjohn Co. v. United States, 449 U. S. 383, 389 (1981) . The systemic benefits of the privilege are commonly understood to outweigh the harm caused by excluding critical evidence. A privilege should operate, however, only where “necessary to achieve its purpose,” see Fisher v. United States, 425 U. S. 391, 403 (1976) , and an invocation of the attorney-client privilege should not go unexamined “when it is shown that the interests of the administration of justice can only be frustrated by [its] exercise,” Cohen v. Jenkintown Cab Co. , 238 Pa. Super. 456, 464, 357 A. 2d 689, 693–694 (1976).

I agree that a deceased client may retain a personal, reputational, and economic interest in confidentiality. See ante , at 7. But, after death, the potential that disclosure will harm the client’s interests has been greatly diminished, and the risk that the client will be held criminally liable has abated altogether. Thus, some commentators suggest that terminating the privilege upon the client’s death “could not to any substantial degree lessen the encouragement for free disclosure which is [its] purpose.” 1 J. Strong, McCormick on Evidence §94, p. 350 (4th ed. 1992); see also Restatement (Third) of the Law Governing Lawyers §127, Comment d (Proposed Final Draft No. 1, Mar. 29, 1996). This diminished risk is coupled with a heightened urgency for discovery of a deceased client’s communications in the criminal context. The privilege does not “protect[] disclosure of the underlying facts by those who communicated with the attorney,” Upjohn , supra , at 395, and were the client living, prosecutors could grant immunity and compel the relevant testimony. After a client’s death, however, if the privilege precludes an attorney from testifying in the client’s stead, a complete “loss of crucial information” will often result, see 24 C. Wright & K. Graham, Federal Practice and Procedure §5498, p. 484 (1986).

As the Court of Appeals observed, the costs of recognizing an absolute posthumous privilege can be inordinately high. See In re Sealed Case , 124 F. 3d 230, 233–234 (CADC 1997). Extreme injustice may occur, for example, where a criminal defendant seeks disclosure of a deceased client’s confession to the offense. See State v. Macumber , 112 Ariz. 569, 571, 544 P. 2d 1084, 1086 (1976); cf. In the Matter of a John Doe Grand Jury Investigation , 408 Mass. 480, 486, 562 N. E. 2d 69, 72 (1990) (Nolan, J., dissenting). In my view, the paramount value that our criminal justice system places on protecting an innocent defendant should outweigh a deceased client’s interest in preserving confidences. See, e.g. , Schlup v. Delo, 513 U. S. 298, 324–325 (1995) ; In re Winship, 397 U. S. 358, 371 (1970) (Harlan, J., concurring). Indeed, even petitioner acknowledges that an exception may be appropriate where the constitutional rights of a criminal defendant are at stake. An exception may likewise be warranted in the face of a compelling law enforcement need for the information. “[O]ur historic commitment to the rule of law … is nowhere more profoundly manifest than in our view that the twofold aim of criminal justice is that guilt shall not escape or innocence suffer.” Nixon , supra , at 709 (internal quotation marks omitted); see also Herrera v. Collins, 506 U. S. 390, 398 (1993) . Given that the complete exclusion of relevant evidence from a criminal trial or investigation may distort the record, mislead the factfinder, and undermine the central truth-seeking function of the courts, I do not believe that the attorney-client privilege should act as an absolute bar to the disclosure of a deceased client’s communications. When the privilege is asserted in the criminal context, and a showing is made that the communications at issue contain necessary factual information not otherwise available, courts should be permitted to assess whether interests in fairness and accuracy outweigh the justifications for the privilege.

A number of exceptions to the privilege already qualify its protections, and an attorney “who tells his client that the expected communications are absolutely and forever privileged is oversimplifying a bit.” 124 F. 3d, at 235. In the situation where the posthumous privilege most frequently arises—a dispute between heirs over the decedent’s will—the privilege is widely recognized to give way to the interest in settling the estate. See Glover v. Patten, 165 U. S. 394, 406–408 (1897) . This testamentary exception, moreover, may be invoked in some cases where the decedent would not have chosen to waive the privilege. For example, “a decedent might want to provide for an illegitimate child but at the same time much prefer that the relationship go undisclosed.” 124 F. 3d, at 234. Among the Court’s rationales for a broad construction of the posthumous privilege is its assertion that “[m]any attorneys act as counselors on personal and family matters, where, in the course of obtaining the desired advice, confidences about family members or financial problems must be revealed . . . which the client would not wish divulged.” Ante , at 8. That reasoning, however, would apply in the testamentary context with equal force. Nor are other existing exceptions to the privilege—for example, the crime-fraud exception or the exceptions for claims relating to attorney competence or compensation—necessarily consistent with “encouraging full and frank communication” or “protecting the client’s interests,” ante , at 10. Rather, those exceptions reflect the understanding that, in certain circumstances, the privilege “ ‘ceases to operate’ ” as a safeguard on “the proper functioning of our adversary system.” See United States v. Zolin, 491 U. S. 554, 562–563 (1989) .

Finally, the common law authority for the proposition that the privilege remains absolute after the client’s death is not a monolithic body of precedent. Indeed, the Court acknowledges that most cases merely “presume the privilege survives,” see ante , at 4–5, and it relies on the case law’s “implicit acceptance” of a continuous privilege, see ante , at 6. Opinions squarely addressing the posthumous force of the privilege “are relatively rare.” See 124 F. 3d, at 232. And even in those decisions expressly holding that the privilege continues after the death of the client, courts do not typically engage in detailed reasoning, but rather conclude that the cases construing the testamentary exception imply survival of the privilege. See, e.g. , Glover , supra , at 406–408; see also Wright & Graham, supra , §5498, at 484 (“Those who favor an eternal duration for the privilege seldom do much by way of justifying this in terms of policy”).

Moreover, as the Court concedes, see ante , at 4, 6, there is some authority for the proposition that a deceased client’s communications may be revealed, even in circumstances outside of the testamentary context. California’s Evidence Code, for example, provides that the attorney-client privilege continues only until the deceased client’s estate is finally distributed, noting that “there is little reason to preserve secrecy at the expense of excluding relevant evidence after the estate is wound up and the representative is discharged.” Cal. Evid. Code Ann. §954, and comment, p. 232, §952 (West 1995). And a state appellate court has admitted an attorney’s testimony concerning a deceased client’s communications after “balanc[ing] the necessity for revealing the substance of the [attorney-client conversation] against the unlikelihood of any cognizable injury to the rights, interests, estate or memory of [the client].” See Cohen , supra , at 464, 357 A. 2d, at 693. The American Law Institute, moreover, has recently recommended withholding the privilege when the communication “bears on a litigated issue of pivotal significance” and has suggested that courts “balance the interest in confidentiality against any exceptional need for the communication.” Restatement (Third) of the Law Governing Lawyers §127, at 431, Comment d ; see also 2 C. Mueller & L. Kirkpatrick, Federal Evidence, §199, p. 380 (2d ed. 1994) (“[I]f a deceased client has confessed to criminal acts that are later charged to another, surely the latter’s need for evidence sometimes outweighs the interest in preserving the confidences”).

Where the exoneration of an innocent criminal defendant or a compelling law enforcement interest is at stake, the harm of precluding critical evidence that is unavailable by any other means outweighs the potential disincentive to forthright communication. In my view, the cost of silence warrants a narrow exception to the rule that the attorney-client privilege survives the death of the client. Moreover, although I disagree with the Court of Appeals’ notion that the context of an initial client interview affects the applicability of the work product doctrine, I do not believe that the doctrine applies where the material concerns a client who is no longer a potential party to adversarial litigation.

Accordingly, I would affirm the judgment of the Court of Appeals. Although the District Court examined the documents in camera , it has not had an opportunity to balance these competing considerations and decide whether the privilege should be trumped in the particular circumstances of this case. Thus, I agree with the Court of Appeals’ decision to remand for a determination whether any portion of the notes must be disclosed.

With respect, I dissent.


TOP

Dissent

SWIDLER & BERLIN and JAMES HAMILTON,
PETITIONERS v. UNITED STATES

on writ of certiorari to the united states court of appeals for the district of columbia circuit


[June 25, 1998]

Justice O’Connor , with whom Justice Scalia and Justice Thomas join, dissenting.

Although the attorney-client privilege ordinarily will survive the death of the client, I do not agree with the Court that it inevitably precludes disclosure of a deceased client’s communications in criminal proceedings. In my view, a criminal defendant’s right to exculpatory evidence or a compelling law enforcement need for informa- tion may, where the testimony is not available from other sources, override a client’s posthumous interest in confidentiality.

We have long recognized that “[t]he fundamental basis upon which all rules of evidence must rest—if they are to rest upon reason—is their adaptation to the successful development of the truth.” Funk v. United States, 290 U. S. 371, 381 (1933) . In light of the heavy burden that they place on the search for truth, see United States v. Nixon, 418 U. S. 683, 708–710 (1974) , “[e]videntiary privileges in litigation are not favored, and even those rooted in the Constitution must give way in proper circumstances,” Herbert v. Lando, 441 U. S. 153, 175 (1979) . Consequently, we construe the scope of privileges narrowly. See Jaffee v. Redmond, 518 U. S. 1, 19 (1996) ( Scalia , J., dissenting); see also University of Pennsylvania v. EEOC, 493 U. S. 182, 189 (1990) . We are reluctant to recognize a privilege or read an existing one expansively unless to do so will serve a “public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.” Trammel v. United States, 445 U. S. 40, 50 (1980) (internal quotation marks omitted).

The attorney-client privilege promotes trust in the representational relationship, thereby facilitating the provision of legal services and ultimately the administration of justice. See Upjohn Co. v. United States, 449 U. S. 383, 389 (1981) . The systemic benefits of the privilege are commonly understood to outweigh the harm caused by excluding critical evidence. A privilege should operate, however, only where “necessary to achieve its purpose,” see Fisher v. United States, 425 U. S. 391, 403 (1976) , and an invocation of the attorney-client privilege should not go unexamined “when it is shown that the interests of the administration of justice can only be frustrated by [its] exercise,” Cohen v. Jenkintown Cab Co. , 238 Pa. Super. 456, 464, 357 A. 2d 689, 693–694 (1976).

I agree that a deceased client may retain a personal, reputational, and economic interest in confidentiality. See ante , at 7. But, after death, the potential that disclosure will harm the client’s interests has been greatly diminished, and the risk that the client will be held criminally liable has abated altogether. Thus, some commentators suggest that terminating the privilege upon the client’s death “could not to any substantial degree lessen the encouragement for free disclosure which is [its] purpose.” 1 J. Strong, McCormick on Evidence §94, p. 350 (4th ed. 1992); see also Restatement (Third) of the Law Governing Lawyers §127, Comment d (Proposed Final Draft No. 1, Mar. 29, 1996). This diminished risk is coupled with a heightened urgency for discovery of a deceased client’s communications in the criminal context. The privilege does not “protect[] disclosure of the underlying facts by those who communicated with the attorney,” Upjohn , supra , at 395, and were the client living, prosecutors could grant immunity and compel the relevant testimony. After a client’s death, however, if the privilege precludes an attorney from testifying in the client’s stead, a complete “loss of crucial information” will often result, see 24 C. Wright & K. Graham, Federal Practice and Procedure §5498, p. 484 (1986).

As the Court of Appeals observed, the costs of recognizing an absolute posthumous privilege can be inordinately high. See In re Sealed Case , 124 F. 3d 230, 233–234 (CADC 1997). Extreme injustice may occur, for example, where a criminal defendant seeks disclosure of a deceased client’s confession to the offense. See State v. Macumber , 112 Ariz. 569, 571, 544 P. 2d 1084, 1086 (1976); cf. In the Matter of a John Doe Grand Jury Investigation , 408 Mass. 480, 486, 562 N. E. 2d 69, 72 (1990) (Nolan, J., dissenting). In my view, the paramount value that our criminal justice system places on protecting an innocent defendant should outweigh a deceased client’s interest in preserving confidences. See, e.g. , Schlup v. Delo, 513 U. S. 298, 324–325 (1995) ; In re Winship, 397 U. S. 358, 371 (1970) (Harlan, J., concurring). Indeed, even petitioner acknowledges that an exception may be appropriate where the constitutional rights of a criminal defendant are at stake. An exception may likewise be warranted in the face of a compelling law enforcement need for the information. “[O]ur historic commitment to the rule of law … is nowhere more profoundly manifest than in our view that the twofold aim of criminal justice is that guilt shall not escape or innocence suffer.” Nixon , supra , at 709 (internal quotation marks omitted); see also Herrera v. Collins, 506 U. S. 390, 398 (1993) . Given that the complete exclusion of relevant evidence from a criminal trial or investigation may distort the record, mislead the factfinder, and undermine the central truth-seeking function of the courts, I do not believe that the attorney-client privilege should act as an absolute bar to the disclosure of a deceased client’s communications. When the privilege is asserted in the criminal context, and a showing is made that the communications at issue contain necessary factual information not otherwise available, courts should be permitted to assess whether interests in fairness and accuracy outweigh the justifications for the privilege.

A number of exceptions to the privilege already qualify its protections, and an attorney “who tells his client that the expected communications are absolutely and forever privileged is oversimplifying a bit.” 124 F. 3d, at 235. In the situation where the posthumous privilege most frequently arises—a dispute between heirs over the decedent’s will—the privilege is widely recognized to give way to the interest in settling the estate. See Glover v. Patten, 165 U. S. 394, 406–408 (1897) . This testamentary exception, moreover, may be invoked in some cases where the decedent would not have chosen to waive the privilege. For example, “a decedent might want to provide for an illegitimate child but at the same time much prefer that the relationship go undisclosed.” 124 F. 3d, at 234. Among the Court’s rationales for a broad construction of the posthumous privilege is its assertion that “[m]any attorneys act as counselors on personal and family matters, where, in the course of obtaining the desired advice, confidences about family members or financial problems must be revealed . . . which the client would not wish divulged.” Ante , at 8. That reasoning, however, would apply in the testamentary context with equal force. Nor are other existing exceptions to the privilege—for example, the crime-fraud exception or the exceptions for claims relating to attorney competence or compensation—necessarily consistent with “encouraging full and frank communication” or “protecting the client’s interests,” ante , at 10. Rather, those exceptions reflect the understanding that, in certain circumstances, the privilege “ ‘ceases to operate’ ” as a safeguard on “the proper functioning of our adversary system.” See United States v. Zolin, 491 U. S. 554, 562–563 (1989) .

Finally, the common law authority for the proposition that the privilege remains absolute after the client’s death is not a monolithic body of precedent. Indeed, the Court acknowledges that most cases merely “presume the privilege survives,” see ante , at 4–5, and it relies on the case law’s “implicit acceptance” of a continuous privilege, see ante , at 6. Opinions squarely addressing the posthumous force of the privilege “are relatively rare.” See 124 F. 3d, at 232. And even in those decisions expressly holding that the privilege continues after the death of the client, courts do not typically engage in detailed reasoning, but rather conclude that the cases construing the testamentary exception imply survival of the privilege. See, e.g. , Glover , supra , at 406–408; see also Wright & Graham, supra , §5498, at 484 (“Those who favor an eternal duration for the privilege seldom do much by way of justifying this in terms of policy”).

Moreover, as the Court concedes, see ante , at 4, 6, there is some authority for the proposition that a deceased client’s communications may be revealed, even in circumstances outside of the testamentary context. California’s Evidence Code, for example, provides that the attorney-client privilege continues only until the deceased client’s estate is finally distributed, noting that “there is little reason to preserve secrecy at the expense of excluding relevant evidence after the estate is wound up and the representative is discharged.” Cal. Evid. Code Ann. §954, and comment, p. 232, §952 (West 1995). And a state appellate court has admitted an attorney’s testimony concerning a deceased client’s communications after “balanc[ing] the necessity for revealing the substance of the [attorney-client conversation] against the unlikelihood of any cognizable injury to the rights, interests, estate or memory of [the client].” See Cohen , supra , at 464, 357 A. 2d, at 693. The American Law Institute, moreover, has recently recommended withholding the privilege when the communication “bears on a litigated issue of pivotal significance” and has suggested that courts “balance the interest in confidentiality against any exceptional need for the communication.” Restatement (Third) of the Law Governing Lawyers §127, at 431, Comment d ; see also 2 C. Mueller & L. Kirkpatrick, Federal Evidence, §199, p. 380 (2d ed. 1994) (“[I]f a deceased client has confessed to criminal acts that are later charged to another, surely the latter’s need for evidence sometimes outweighs the interest in preserving the confidences”).

Where the exoneration of an innocent criminal defendant or a compelling law enforcement interest is at stake, the harm of precluding critical evidence that is unavailable by any other means outweighs the potential disincentive to forthright communication. In my view, the cost of silence warrants a narrow exception to the rule that the attorney-client privilege survives the death of the client. Moreover, although I disagree with the Court of Appeals’ notion that the context of an initial client interview affects the applicability of the work product doctrine, I do not believe that the doctrine applies where the material concerns a client who is no longer a potential party to adversarial litigation.

Accordingly, I would affirm the judgment of the Court of Appeals. Although the District Court examined the documents in camera , it has not had an opportunity to balance these competing considerations and decide whether the privilege should be trumped in the particular circumstances of this case. Thus, I agree with the Court of Appeals’ decision to remand for a determination whether any portion of the notes must be disclosed.

With respect, I dissent.


TOP

Dissent

SWIDLER & BERLIN and JAMES HAMILTON,
PETITIONERS v. UNITED STATES

on writ of certiorari to the united states court of appeals for the district of columbia circuit


[June 25, 1998]

Justice O’Connor , with whom Justice Scalia and Justice Thomas join, dissenting.

Although the attorney-client privilege ordinarily will survive the death of the client, I do not agree with the Court that it inevitably precludes disclosure of a deceased client’s communications in criminal proceedings. In my view, a criminal defendant’s right to exculpatory evidence or a compelling law enforcement need for informa- tion may, where the testimony is not available from other sources, override a client’s posthumous interest in confidentiality.

We have long recognized that “[t]he fundamental basis upon which all rules of evidence must rest—if they are to rest upon reason—is their adaptation to the successful development of the truth.” Funk v. United States, 290 U. S. 371, 381 (1933) . In light of the heavy burden that they place on the search for truth, see United States v. Nixon, 418 U. S. 683, 708–710 (1974) , “[e]videntiary privileges in litigation are not favored, and even those rooted in the Constitution must give way in proper circumstances,” Herbert v. Lando, 441 U. S. 153, 175 (1979) . Consequently, we construe the scope of privileges narrowly. See Jaffee v. Redmond, 518 U. S. 1, 19 (1996) ( Scalia , J., dissenting); see also University of Pennsylvania v. EEOC, 493 U. S. 182, 189 (1990) . We are reluctant to recognize a privilege or read an existing one expansively unless to do so will serve a “public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.” Trammel v. United States, 445 U. S. 40, 50 (1980) (internal quotation marks omitted).

The attorney-client privilege promotes trust in the representational relationship, thereby facilitating the provision of legal services and ultimately the administration of justice. See Upjohn Co. v. United States, 449 U. S. 383, 389 (1981) . The systemic benefits of the privilege are commonly understood to outweigh the harm caused by excluding critical evidence. A privilege should operate, however, only where “necessary to achieve its purpose,” see Fisher v. United States, 425 U. S. 391, 403 (1976) , and an invocation of the attorney-client privilege should not go unexamined “when it is shown that the interests of the administration of justice can only be frustrated by [its] exercise,” Cohen v. Jenkintown Cab Co. , 238 Pa. Super. 456, 464, 357 A. 2d 689, 693–694 (1976).

I agree that a deceased client may retain a personal, reputational, and economic interest in confidentiality. See ante , at 7. But, after death, the potential that disclosure will harm the client’s interests has been greatly diminished, and the risk that the client will be held criminally liable has abated altogether. Thus, some commentators suggest that terminating the privilege upon the client’s death “could not to any substantial degree lessen the encouragement for free disclosure which is [its] purpose.” 1 J. Strong, McCormick on Evidence §94, p. 350 (4th ed. 1992); see also Restatement (Third) of the Law Governing Lawyers §127, Comment d (Proposed Final Draft No. 1, Mar. 29, 1996). This diminished risk is coupled with a heightened urgency for discovery of a deceased client’s communications in the criminal context. The privilege does not “protect[] disclosure of the underlying facts by those who communicated with the attorney,” Upjohn , supra , at 395, and were the client living, prosecutors could grant immunity and compel the relevant testimony. After a client’s death, however, if the privilege precludes an attorney from testifying in the client’s stead, a complete “loss of crucial information” will often result, see 24 C. Wright & K. Graham, Federal Practice and Procedure §5498, p. 484 (1986).

As the Court of Appeals observed, the costs of recognizing an absolute posthumous privilege can be inordinately high. See In re Sealed Case , 124 F. 3d 230, 233–234 (CADC 1997). Extreme injustice may occur, for example, where a criminal defendant seeks disclosure of a deceased client’s confession to the offense. See State v. Macumber , 112 Ariz. 569, 571, 544 P. 2d 1084, 1086 (1976); cf. In the Matter of a John Doe Grand Jury Investigation , 408 Mass. 480, 486, 562 N. E. 2d 69, 72 (1990) (Nolan, J., dissenting). In my view, the paramount value that our criminal justice system places on protecting an innocent defendant should outweigh a deceased client’s interest in preserving confidences. See, e.g. , Schlup v. Delo, 513 U. S. 298, 324–325 (1995) ; In re Winship, 397 U. S. 358, 371 (1970) (Harlan, J., concurring). Indeed, even petitioner acknowledges that an exception may be appropriate where the constitutional rights of a criminal defendant are at stake. An exception may likewise be warranted in the face of a compelling law enforcement need for the information. “[O]ur historic commitment to the rule of law … is nowhere more profoundly manifest than in our view that the twofold aim of criminal justice is that guilt shall not escape or innocence suffer.” Nixon , supra , at 709 (internal quotation marks omitted); see also Herrera v. Collins, 506 U. S. 390, 398 (1993) . Given that the complete exclusion of relevant evidence from a criminal trial or investigation may distort the record, mislead the factfinder, and undermine the central truth-seeking function of the courts, I do not believe that the attorney-client privilege should act as an absolute bar to the disclosure of a deceased client’s communications. When the privilege is asserted in the criminal context, and a showing is made that the communications at issue contain necessary factual information not otherwise available, courts should be permitted to assess whether interests in fairness and accuracy outweigh the justifications for the privilege.

A number of exceptions to the privilege already qualify its protections, and an attorney “who tells his client that the expected communications are absolutely and forever privileged is oversimplifying a bit.” 124 F. 3d, at 235. In the situation where the posthumous privilege most frequently arises—a dispute between heirs over the decedent’s will—the privilege is widely recognized to give way to the interest in settling the estate. See Glover v. Patten, 165 U. S. 394, 406–408 (1897) . This testamentary exception, moreover, may be invoked in some cases where the decedent would not have chosen to waive the privilege. For example, “a decedent might want to provide for an illegitimate child but at the same time much prefer that the relationship go undisclosed.” 124 F. 3d, at 234. Among the Court’s rationales for a broad construction of the posthumous privilege is its assertion that “[m]any attorneys act as counselors on personal and family matters, where, in the course of obtaining the desired advice, confidences about family members or financial problems must be revealed . . . which the client would not wish divulged.” Ante , at 8. That reasoning, however, would apply in the testamentary context with equal force. Nor are other existing exceptions to the privilege—for example, the crime-fraud exception or the exceptions for claims relating to attorney competence or compensation—necessarily consistent with “encouraging full and frank communication” or “protecting the client’s interests,” ante , at 10. Rather, those exceptions reflect the understanding that, in certain circumstances, the privilege “ ‘ceases to operate’ ” as a safeguard on “the proper functioning of our adversary system.” See United States v. Zolin, 491 U. S. 554, 562–563 (1989) .

Finally, the common law authority for the proposition that the privilege remains absolute after the client’s death is not a monolithic body of precedent. Indeed, the Court acknowledges that most cases merely “presume the privilege survives,” see ante , at 4–5, and it relies on the case law’s “implicit acceptance” of a continuous privilege, see ante , at 6. Opinions squarely addressing the posthumous force of the privilege “are relatively rare.” See 124 F. 3d, at 232. And even in those decisions expressly holding that the privilege continues after the death of the client, courts do not typically engage in detailed reasoning, but rather conclude that the cases construing the testamentary exception imply survival of the privilege. See, e.g. , Glover , supra , at 406–408; see also Wright & Graham, supra , §5498, at 484 (“Those who favor an eternal duration for the privilege seldom do much by way of justifying this in terms of policy”).

Moreover, as the Court concedes, see ante , at 4, 6, there is some authority for the proposition that a deceased client’s communications may be revealed, even in circumstances outside of the testamentary context. California’s Evidence Code, for example, provides that the attorney-client privilege continues only until the deceased client’s estate is finally distributed, noting that “there is little reason to preserve secrecy at the expense of excluding relevant evidence after the estate is wound up and the representative is discharged.” Cal. Evid. Code Ann. §954, and comment, p. 232, §952 (West 1995). And a state appellate court has admitted an attorney’s testimony concerning a deceased client’s communications after “balanc[ing] the necessity for revealing the substance of the [attorney-client conversation] against the unlikelihood of any cognizable injury to the rights, interests, estate or memory of [the client].” See Cohen , supra , at 464, 357 A. 2d, at 693. The American Law Institute, moreover, has recently recommended withholding the privilege when the communication “bears on a litigated issue of pivotal significance” and has suggested that courts “balance the interest in confidentiality against any exceptional need for the communication.” Restatement (Third) of the Law Governing Lawyers §127, at 431, Comment d ; see also 2 C. Mueller & L. Kirkpatrick, Federal Evidence, §199, p. 380 (2d ed. 1994) (“[I]f a deceased client has confessed to criminal acts that are later charged to another, surely the latter’s need for evidence sometimes outweighs the interest in preserving the confidences”).

Where the exoneration of an innocent criminal defendant or a compelling law enforcement interest is at stake, the harm of precluding critical evidence that is unavailable by any other means outweighs the potential disincentive to forthright communication. In my view, the cost of silence warrants a narrow exception to the rule that the attorney-client privilege survives the death of the client. Moreover, although I disagree with the Court of Appeals’ notion that the context of an initial client interview affects the applicability of the work product doctrine, I do not believe that the doctrine applies where the material concerns a client who is no longer a potential party to adversarial litigation.

Accordingly, I would affirm the judgment of the Court of Appeals. Although the District Court examined the documents in camera , it has not had an opportunity to balance these competing considerations and decide whether the privilege should be trumped in the particular circumstances of this case. Thus, I agree with the Court of Appeals’ decision to remand for a determination whether any portion of the notes must be disclosed.

With respect, I dissent.


TOP

Dissent

SWIDLER & BERLIN and JAMES HAMILTON,
PETITIONERS v. UNITED STATES

on writ of certiorari to the united states court of appeals for the district of columbia circuit


[June 25, 1998]

Justice O’Connor , with whom Justice Scalia and Justice Thomas join, dissenting.

Although the attorney-client privilege ordinarily will survive the death of the client, I do not agree with the Court that it inevitably precludes disclosure of a deceased client’s communications in criminal proceedings. In my view, a criminal defendant’s right to exculpatory evidence or a compelling law enforcement need for informa- tion may, where the testimony is not available from other sources, override a client’s posthumous interest in confidentiality.

We have long recognized that “[t]he fundamental basis upon which all rules of evidence must rest—if they are to rest upon reason—is their adaptation to the successful development of the truth.” Funk v. United States, 290 U. S. 371, 381 (1933) . In light of the heavy burden that they place on the search for truth, see United States v. Nixon, 418 U. S. 683, 708–710 (1974) , “[e]videntiary privileges in litigation are not favored, and even those rooted in the Constitution must give way in proper circumstances,” Herbert v. Lando, 441 U. S. 153, 175 (1979) . Consequently, we construe the scope of privileges narrowly. See Jaffee v. Redmond, 518 U. S. 1, 19 (1996) ( Scalia , J., dissenting); see also University of Pennsylvania v. EEOC, 493 U. S. 182, 189 (1990) . We are reluctant to recognize a privilege or read an existing one expansively unless to do so will serve a “public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.” Trammel v. United States, 445 U. S. 40, 50 (1980) (internal quotation marks omitted).

The attorney-client privilege promotes trust in the representational relationship, thereby facilitating the provision of legal services and ultimately the administration of justice. See Upjohn Co. v. United States, 449 U. S. 383, 389 (1981) . The systemic benefits of the privilege are commonly understood to outweigh the harm caused by excluding critical evidence. A privilege should operate, however, only where “necessary to achieve its purpose,” see Fisher v. United States, 425 U. S. 391, 403 (1976) , and an invocation of the attorney-client privilege should not go unexamined “when it is shown that the interests of the administration of justice can only be frustrated by [its] exercise,” Cohen v. Jenkintown Cab Co. , 238 Pa. Super. 456, 464, 357 A. 2d 689, 693–694 (1976).

I agree that a deceased client may retain a personal, reputational, and economic interest in confidentiality. See ante , at 7. But, after death, the potential that disclosure will harm the client’s interests has been greatly diminished, and the risk that the client will be held criminally liable has abated altogether. Thus, some commentators suggest that terminating the privilege upon the client’s death “could not to any substantial degree lessen the encouragement for free disclosure which is [its] purpose.” 1 J. Strong, McCormick on Evidence §94, p. 350 (4th ed. 1992); see also Restatement (Third) of the Law Governing Lawyers §127, Comment d (Proposed Final Draft No. 1, Mar. 29, 1996). This diminished risk is coupled with a heightened urgency for discovery of a deceased client’s communications in the criminal context. The privilege does not “protect[] disclosure of the underlying facts by those who communicated with the attorney,” Upjohn , supra , at 395, and were the client living, prosecutors could grant immunity and compel the relevant testimony. After a client’s death, however, if the privilege precludes an attorney from testifying in the client’s stead, a complete “loss of crucial information” will often result, see 24 C. Wright & K. Graham, Federal Practice and Procedure §5498, p. 484 (1986).

As the Court of Appeals observed, the costs of recognizing an absolute posthumous privilege can be inordinately high. See In re Sealed Case , 124 F. 3d 230, 233–234 (CADC 1997). Extreme injustice may occur, for example, where a criminal defendant seeks disclosure of a deceased client’s confession to the offense. See State v. Macumber , 112 Ariz. 569, 571, 544 P. 2d 1084, 1086 (1976); cf. In the Matter of a John Doe Grand Jury Investigation , 408 Mass. 480, 486, 562 N. E. 2d 69, 72 (1990) (Nolan, J., dissenting). In my view, the paramount value that our criminal justice system places on protecting an innocent defendant should outweigh a deceased client’s interest in preserving confidences. See, e.g. , Schlup v. Delo, 513 U. S. 298, 324–325 (1995) ; In re Winship, 397 U. S. 358, 371 (1970) (Harlan, J., concurring). Indeed, even petitioner acknowledges that an exception may be appropriate where the constitutional rights of a criminal defendant are at stake. An exception may likewise be warranted in the face of a compelling law enforcement need for the information. “[O]ur historic commitment to the rule of law … is nowhere more profoundly manifest than in our view that the twofold aim of criminal justice is that guilt shall not escape or innocence suffer.” Nixon , supra , at 709 (internal quotation marks omitted); see also Herrera v. Collins, 506 U. S. 390, 398 (1993) . Given that the complete exclusion of relevant evidence from a criminal trial or investigation may distort the record, mislead the factfinder, and undermine the central truth-seeking function of the courts, I do not believe that the attorney-client privilege should act as an absolute bar to the disclosure of a deceased client’s communications. When the privilege is asserted in the criminal context, and a showing is made that the communications at issue contain necessary factual information not otherwise available, courts should be permitted to assess whether interests in fairness and accuracy outweigh the justifications for the privilege.

A number of exceptions to the privilege already qualify its protections, and an attorney “who tells his client that the expected communications are absolutely and forever privileged is oversimplifying a bit.” 124 F. 3d, at 235. In the situation where the posthumous privilege most frequently arises—a dispute between heirs over the decedent’s will—the privilege is widely recognized to give way to the interest in settling the estate. See Glover v. Patten, 165 U. S. 394, 406–408 (1897) . This testamentary exception, moreover, may be invoked in some cases where the decedent would not have chosen to waive the privilege. For example, “a decedent might want to provide for an illegitimate child but at the same time much prefer that the relationship go undisclosed.” 124 F. 3d, at 234. Among the Court’s rationales for a broad construction of the posthumous privilege is its assertion that “[m]any attorneys act as counselors on personal and family matters, where, in the course of obtaining the desired advice, confidences about family members or financial problems must be revealed . . . which the client would not wish divulged.” Ante , at 8. That reasoning, however, would apply in the testamentary context with equal force. Nor are other existing exceptions to the privilege—for example, the crime-fraud exception or the exceptions for claims relating to attorney competence or compensation—necessarily consistent with “encouraging full and frank communication” or “protecting the client’s interests,” ante , at 10. Rather, those exceptions reflect the understanding that, in certain circumstances, the privilege “ ‘ceases to operate’ ” as a safeguard on “the proper functioning of our adversary system.” See United States v. Zolin, 491 U. S. 554, 562–563 (1989) .

Finally, the common law authority for the proposition that the privilege remains absolute after the client’s death is not a monolithic body of precedent. Indeed, the Court acknowledges that most cases merely “presume the privilege survives,” see ante , at 4–5, and it relies on the case law’s “implicit acceptance” of a continuous privilege, see ante , at 6. Opinions squarely addressing the posthumous force of the privilege “are relatively rare.” See 124 F. 3d, at 232. And even in those decisions expressly holding that the privilege continues after the death of the client, courts do not typically engage in detailed reasoning, but rather conclude that the cases construing the testamentary exception imply survival of the privilege. See, e.g. , Glover , supra , at 406–408; see also Wright & Graham, supra , §5498, at 484 (“Those who favor an eternal duration for the privilege seldom do much by way of justifying this in terms of policy”).

Moreover, as the Court concedes, see ante , at 4, 6, there is some authority for the proposition that a deceased client’s communications may be revealed, even in circumstances outside of the testamentary context. California’s Evidence Code, for example, provides that the attorney-client privilege continues only until the deceased client’s estate is finally distributed, noting that “there is little reason to preserve secrecy at the expense of excluding relevant evidence after the estate is wound up and the representative is discharged.” Cal. Evid. Code Ann. §954, and comment, p. 232, §952 (West 1995). And a state appellate court has admitted an attorney’s testimony concerning a deceased client’s communications after “balanc[ing] the necessity for revealing the substance of the [attorney-client conversation] against the unlikelihood of any cognizable injury to the rights, interests, estate or memory of [the client].” See Cohen , supra , at 464, 357 A. 2d, at 693. The American Law Institute, moreover, has recently recommended withholding the privilege when the communication “bears on a litigated issue of pivotal significance” and has suggested that courts “balance the interest in confidentiality against any exceptional need for the communication.” Restatement (Third) of the Law Governing Lawyers §127, at 431, Comment d ; see also 2 C. Mueller & L. Kirkpatrick, Federal Evidence, §199, p. 380 (2d ed. 1994) (“[I]f a deceased client has confessed to criminal acts that are later charged to another, surely the latter’s need for evidence sometimes outweighs the interest in preserving the confidences”).

Where the exoneration of an innocent criminal defendant or a compelling law enforcement interest is at stake, the harm of precluding critical evidence that is unavailable by any other means outweighs the potential disincentive to forthright communication. In my view, the cost of silence warrants a narrow exception to the rule that the attorney-client privilege survives the death of the client. Moreover, although I disagree with the Court of Appeals’ notion that the context of an initial client interview affects the applicability of the work product doctrine, I do not believe that the doctrine applies where the material concerns a client who is no longer a potential party to adversarial litigation.

Accordingly, I would affirm the judgment of the Court of Appeals. Although the District Court examined the documents in camera , it has not had an opportunity to balance these competing considerations and decide whether the privilege should be trumped in the particular circumstances of this case. Thus, I agree with the Court of Appeals’ decision to remand for a determination whether any portion of the notes must be disclosed.

With respect, I dissent.


TOP

Dissent

SWIDLER & BERLIN and JAMES HAMILTON,
PETITIONERS v. UNITED STATES

on writ of certiorari to the united states court of appeals for the district of columbia circuit


[June 25, 1998]

Justice O’Connor , with whom Justice Scalia and Justice Thomas join, dissenting.

Although the attorney-client privilege ordinarily will survive the death of the client, I do not agree with the Court that it inevitably precludes disclosure of a deceased client’s communications in criminal proceedings. In my view, a criminal defendant’s right to exculpatory evidence or a compelling law enforcement need for informa- tion may, where the testimony is not available from other sources, override a client’s posthumous interest in confidentiality.

We have long recognized that “[t]he fundamental basis upon which all rules of evidence must rest—if they are to rest upon reason—is their adaptation to the successful development of the truth.” Funk v. United States, 290 U. S. 371, 381 (1933) . In light of the heavy burden that they place on the search for truth, see United States v. Nixon, 418 U. S. 683, 708–710 (1974) , “[e]videntiary privileges in litigation are not favored, and even those rooted in the Constitution must give way in proper circumstances,” Herbert v. Lando, 441 U. S. 153, 175 (1979) . Consequently, we construe the scope of privileges narrowly. See Jaffee v. Redmond, 518 U. S. 1, 19 (1996) ( Scalia , J., dissenting); see also University of Pennsylvania v. EEOC, 493 U. S. 182, 189 (1990) . We are reluctant to recognize a privilege or read an existing one expansively unless to do so will serve a “public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.” Trammel v. United States, 445 U. S. 40, 50 (1980) (internal quotation marks omitted).

The attorney-client privilege promotes trust in the representational relationship, thereby facilitating the provision of legal services and ultimately the administration of justice. See Upjohn Co. v. United States, 449 U. S. 383, 389 (1981) . The systemic benefits of the privilege are commonly understood to outweigh the harm caused by excluding critical evidence. A privilege should operate, however, only where “necessary to achieve its purpose,” see Fisher v. United States, 425 U. S. 391, 403 (1976) , and an invocation of the attorney-client privilege should not go unexamined “when it is shown that the interests of the administration of justice can only be frustrated by [its] exercise,” Cohen v. Jenkintown Cab Co. , 238 Pa. Super. 456, 464, 357 A. 2d 689, 693–694 (1976).

I agree that a deceased client may retain a personal, reputational, and economic interest in confidentiality. See ante , at 7. But, after death, the potential that disclosure will harm the client’s interests has been greatly diminished, and the risk that the client will be held criminally liable has abated altogether. Thus, some commentators suggest that terminating the privilege upon the client’s death “could not to any substantial degree lessen the encouragement for free disclosure which is [its] purpose.” 1 J. Strong, McCormick on Evidence §94, p. 350 (4th ed. 1992); see also Restatement (Third) of the Law Governing Lawyers §127, Comment d (Proposed Final Draft No. 1, Mar. 29, 1996). This diminished risk is coupled with a heightened urgency for discovery of a deceased client’s communications in the criminal context. The privilege does not “protect[] disclosure of the underlying facts by those who communicated with the attorney,” Upjohn , supra , at 395, and were the client living, prosecutors could grant immunity and compel the relevant testimony. After a client’s death, however, if the privilege precludes an attorney from testifying in the client’s stead, a complete “loss of crucial information” will often result, see 24 C. Wright & K. Graham, Federal Practice and Procedure §5498, p. 484 (1986).

As the Court of Appeals observed, the costs of recognizing an absolute posthumous privilege can be inordinately high. See In re Sealed Case , 124 F. 3d 230, 233–234 (CADC 1997). Extreme injustice may occur, for example, where a criminal defendant seeks disclosure of a deceased client’s confession to the offense. See State v. Macumber , 112 Ariz. 569, 571, 544 P. 2d 1084, 1086 (1976); cf. In the Matter of a John Doe Grand Jury Investigation , 408 Mass. 480, 486, 562 N. E. 2d 69, 72 (1990) (Nolan, J., dissenting). In my view, the paramount value that our criminal justice system places on protecting an innocent defendant should outweigh a deceased client’s interest in preserving confidences. See, e.g. , Schlup v. Delo, 513 U. S. 298, 324–325 (1995) ; In re Winship, 397 U. S. 358, 371 (1970) (Harlan, J., concurring). Indeed, even petitioner acknowledges that an exception may be appropriate where the constitutional rights of a criminal defendant are at stake. An exception may likewise be warranted in the face of a compelling law enforcement need for the information. “[O]ur historic commitment to the rule of law … is nowhere more profoundly manifest than in our view that the twofold aim of criminal justice is that guilt shall not escape or innocence suffer.” Nixon , supra , at 709 (internal quotation marks omitted); see also Herrera v. Collins, 506 U. S. 390, 398 (1993) . Given that the complete exclusion of relevant evidence from a criminal trial or investigation may distort the record, mislead the factfinder, and undermine the central truth-seeking function of the courts, I do not believe that the attorney-client privilege should act as an absolute bar to the disclosure of a deceased client’s communications. When the privilege is asserted in the criminal context, and a showing is made that the communications at issue contain necessary factual information not otherwise available, courts should be permitted to assess whether interests in fairness and accuracy outweigh the justifications for the privilege.

A number of exceptions to the privilege already qualify its protections, and an attorney “who tells his client that the expected communications are absolutely and forever privileged is oversimplifying a bit.” 124 F. 3d, at 235. In the situation where the posthumous privilege most frequently arises—a dispute between heirs over the decedent’s will—the privilege is widely recognized to give way to the interest in settling the estate. See Glover v. Patten, 165 U. S. 394, 406–408 (1897) . This testamentary exception, moreover, may be invoked in some cases where the decedent would not have chosen to waive the privilege. For example, “a decedent might want to provide for an illegitimate child but at the same time much prefer that the relationship go undisclosed.” 124 F. 3d, at 234. Among the Court’s rationales for a broad construction of the posthumous privilege is its assertion that “[m]any attorneys act as counselors on personal and family matters, where, in the course of obtaining the desired advice, confidences about family members or financial problems must be revealed . . . which the client would not wish divulged.” Ante , at 8. That reasoning, however, would apply in the testamentary context with equal force. Nor are other existing exceptions to the privilege—for example, the crime-fraud exception or the exceptions for claims relating to attorney competence or compensation—necessarily consistent with “encouraging full and frank communication” or “protecting the client’s interests,” ante , at 10. Rather, those exceptions reflect the understanding that, in certain circumstances, the privilege “ ‘ceases to operate’ ” as a safeguard on “the proper functioning of our adversary system.” See United States v. Zolin, 491 U. S. 554, 562–563 (1989) .

Finally, the common law authority for the proposition that the privilege remains absolute after the client’s death is not a monolithic body of precedent. Indeed, the Court acknowledges that most cases merely “presume the privilege survives,” see ante , at 4–5, and it relies on the case law’s “implicit acceptance” of a continuous privilege, see ante , at 6. Opinions squarely addressing the posthumous force of the privilege “are relatively rare.” See 124 F. 3d, at 232. And even in those decisions expressly holding that the privilege continues after the death of the client, courts do not typically engage in detailed reasoning, but rather conclude that the cases construing the testamentary exception imply survival of the privilege. See, e.g. , Glover , supra , at 406–408; see also Wright & Graham, supra , §5498, at 484 (“Those who favor an eternal duration for the privilege seldom do much by way of justifying this in terms of policy”).

Moreover, as the Court concedes, see ante , at 4, 6, there is some authority for the proposition that a deceased client’s communications may be revealed, even in circumstances outside of the testamentary context. California’s Evidence Code, for example, provides that the attorney-client privilege continues only until the deceased client’s estate is finally distributed, noting that “there is little reason to preserve secrecy at the expense of excluding relevant evidence after the estate is wound up and the representative is discharged.” Cal. Evid. Code Ann. §954, and comment, p. 232, §952 (West 1995). And a state appellate court has admitted an attorney’s testimony concerning a deceased client’s communications after “balanc[ing] the necessity for revealing the substance of the [attorney-client conversation] against the unlikelihood of any cognizable injury to the rights, interests, estate or memory of [the client].” See Cohen , supra , at 464, 357 A. 2d, at 693. The American Law Institute, moreover, has recently recommended withholding the privilege when the communication “bears on a litigated issue of pivotal significance” and has suggested that courts “balance the interest in confidentiality against any exceptional need for the communication.” Restatement (Third) of the Law Governing Lawyers §127, at 431, Comment d ; see also 2 C. Mueller & L. Kirkpatrick, Federal Evidence, §199, p. 380 (2d ed. 1994) (“[I]f a deceased client has confessed to criminal acts that are later charged to another, surely the latter’s need for evidence sometimes outweighs the interest in preserving the confidences”).

Where the exoneration of an innocent criminal defendant or a compelling law enforcement interest is at stake, the harm of precluding critical evidence that is unavailable by any other means outweighs the potential disincentive to forthright communication. In my view, the cost of silence warrants a narrow exception to the rule that the attorney-client privilege survives the death of the client. Moreover, although I disagree with the Court of Appeals’ notion that the context of an initial client interview affects the applicability of the work product doctrine, I do not believe that the doctrine applies where the material concerns a client who is no longer a potential party to adversarial litigation.

Accordingly, I would affirm the judgment of the Court of Appeals. Although the District Court examined the documents in camera , it has not had an opportunity to balance these competing considerations and decide whether the privilege should be trumped in the particular circumstances of this case. Thus, I agree with the Court of Appeals’ decision to remand for a determination whether any portion of the notes must be disclosed.

With respect, I dissent.


TOP

Dissent

SWIDLER & BERLIN and JAMES HAMILTON,
PETITIONERS v. UNITED STATES

on writ of certiorari to the united states court of appeals for the district of columbia circuit


[June 25, 1998]

Justice O’Connor , with whom Justice Scalia and Justice Thomas join, dissenting.

Although the attorney-client privilege ordinarily will survive the death of the client, I do not agree with the Court that it inevitably precludes disclosure of a deceased client’s communications in criminal proceedings. In my view, a criminal defendant’s right to exculpatory evidence or a compelling law enforcement need for informa- tion may, where the testimony is not available from other sources, override a client’s posthumous interest in confidentiality.

We have long recognized that “[t]he fundamental basis upon which all rules of evidence must rest—if they are to rest upon reason—is their adaptation to the successful development of the truth.” Funk v. United States, 290 U. S. 371, 381 (1933) . In light of the heavy burden that they place on the search for truth, see United States v. Nixon, 418 U. S. 683, 708–710 (1974) , “[e]videntiary privileges in litigation are not favored, and even those rooted in the Constitution must give way in proper circumstances,” Herbert v. Lando, 441 U. S. 153, 175 (1979) . Consequently, we construe the scope of privileges narrowly. See Jaffee v. Redmond, 518 U. S. 1, 19 (1996) ( Scalia , J., dissenting); see also University of Pennsylvania v. EEOC, 493 U. S. 182, 189 (1990) . We are reluctant to recognize a privilege or read an existing one expansively unless to do so will serve a “public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.” Trammel v. United States, 445 U. S. 40, 50 (1980) (internal quotation marks omitted).

The attorney-client privilege promotes trust in the representational relationship, thereby facilitating the provision of legal services and ultimately the administration of justice. See Upjohn Co. v. United States, 449 U. S. 383, 389 (1981) . The systemic benefits of the privilege are commonly understood to outweigh the harm caused by excluding critical evidence. A privilege should operate, however, only where “necessary to achieve its purpose,” see Fisher v. United States, 425 U. S. 391, 403 (1976) , and an invocation of the attorney-client privilege should not go unexamined “when it is shown that the interests of the administration of justice can only be frustrated by [its] exercise,” Cohen v. Jenkintown Cab Co. , 238 Pa. Super. 456, 464, 357 A. 2d 689, 693–694 (1976).

I agree that a deceased client may retain a personal, reputational, and economic interest in confidentiality. See ante , at 7. But, after death, the potential that disclosure will harm the client’s interests has been greatly diminished, and the risk that the client will be held criminally liable has abated altogether. Thus, some commentators suggest that terminating the privilege upon the client’s death “could not to any substantial degree lessen the encouragement for free disclosure which is [its] purpose.” 1 J. Strong, McCormick on Evidence §94, p. 350 (4th ed. 1992); see also Restatement (Third) of the Law Governing Lawyers §127, Comment d (Proposed Final Draft No. 1, Mar. 29, 1996). This diminished risk is coupled with a heightened urgency for discovery of a deceased client’s communications in the criminal context. The privilege does not “protect[] disclosure of the underlying facts by those who communicated with the attorney,” Upjohn , supra , at 395, and were the client living, prosecutors could grant immunity and compel the relevant testimony. After a client’s death, however, if the privilege precludes an attorney from testifying in the client’s stead, a complete “loss of crucial information” will often result, see 24 C. Wright & K. Graham, Federal Practice and Procedure §5498, p. 484 (1986).

As the Court of Appeals observed, the costs of recognizing an absolute posthumous privilege can be inordinately high. See In re Sealed Case , 124 F. 3d 230, 233–234 (CADC 1997). Extreme injustice may occur, for example, where a criminal defendant seeks disclosure of a deceased client’s confession to the offense. See State v. Macumber , 112 Ariz. 569, 571, 544 P. 2d 1084, 1086 (1976); cf. In the Matter of a John Doe Grand Jury Investigation , 408 Mass. 480, 486, 562 N. E. 2d 69, 72 (1990) (Nolan, J., dissenting). In my view, the paramount value that our criminal justice system places on protecting an innocent defendant should outweigh a deceased client’s interest in preserving confidences. See, e.g. , Schlup v. Delo, 513 U. S. 298, 324–325 (1995) ; In re Winship, 397 U. S. 358, 371 (1970) (Harlan, J., concurring). Indeed, even petitioner acknowledges that an exception may be appropriate where the constitutional rights of a criminal defendant are at stake. An exception may likewise be warranted in the face of a compelling law enforcement need for the information. “[O]ur historic commitment to the rule of law … is nowhere more profoundly manifest than in our view that the twofold aim of criminal justice is that guilt shall not escape or innocence suffer.” Nixon , supra , at 709 (internal quotation marks omitted); see also Herrera v. Collins, 506 U. S. 390, 398 (1993) . Given that the complete exclusion of relevant evidence from a criminal trial or investigation may distort the record, mislead the factfinder, and undermine the central truth-seeking function of the courts, I do not believe that the attorney-client privilege should act as an absolute bar to the disclosure of a deceased client’s communications. When the privilege is asserted in the criminal context, and a showing is made that the communications at issue contain necessary factual information not otherwise available, courts should be permitted to assess whether interests in fairness and accuracy outweigh the justifications for the privilege.

A number of exceptions to the privilege already qualify its protections, and an attorney “who tells his client that the expected communications are absolutely and forever privileged is oversimplifying a bit.” 124 F. 3d, at 235. In the situation where the posthumous privilege most frequently arises—a dispute between heirs over the decedent’s will—the privilege is widely recognized to give way to the interest in settling the estate. See Glover v. Patten, 165 U. S. 394, 406–408 (1897) . This testamentary exception, moreover, may be invoked in some cases where the decedent would not have chosen to waive the privilege. For example, “a decedent might want to provide for an illegitimate child but at the same time much prefer that the relationship go undisclosed.” 124 F. 3d, at 234. Among the Court’s rationales for a broad construction of the posthumous privilege is its assertion that “[m]any attorneys act as counselors on personal and family matters, where, in the course of obtaining the desired advice, confidences about family members or financial problems must be revealed . . . which the client would not wish divulged.” Ante , at 8. That reasoning, however, would apply in the testamentary context with equal force. Nor are other existing exceptions to the privilege—for example, the crime-fraud exception or the exceptions for claims relating to attorney competence or compensation—necessarily consistent with “encouraging full and frank communication” or “protecting the client’s interests,” ante , at 10. Rather, those exceptions reflect the understanding that, in certain circumstances, the privilege “ ‘ceases to operate’ ” as a safeguard on “the proper functioning of our adversary system.” See United States v. Zolin, 491 U. S. 554, 562–563 (1989) .

Finally, the common law authority for the proposition that the privilege remains absolute after the client’s death is not a monolithic body of precedent. Indeed, the Court acknowledges that most cases merely “presume the privilege survives,” see ante , at 4–5, and it relies on the case law’s “implicit acceptance” of a continuous privilege, see ante , at 6. Opinions squarely addressing the posthumous force of the privilege “are relatively rare.” See 124 F. 3d, at 232. And even in those decisions expressly holding that the privilege continues after the death of the client, courts do not typically engage in detailed reasoning, but rather conclude that the cases construing the testamentary exception imply survival of the privilege. See, e.g. , Glover , supra , at 406–408; see also Wright & Graham, supra , §5498, at 484 (“Those who favor an eternal duration for the privilege seldom do much by way of justifying this in terms of policy”).

Moreover, as the Court concedes, see ante , at 4, 6, there is some authority for the proposition that a deceased client’s communications may be revealed, even in circumstances outside of the testamentary context. California’s Evidence Code, for example, provides that the attorney-client privilege continues only until the deceased client’s estate is finally distributed, noting that “there is little reason to preserve secrecy at the expense of excluding relevant evidence after the estate is wound up and the representative is discharged.” Cal. Evid. Code Ann. §954, and comment, p. 232, §952 (West 1995). And a state appellate court has admitted an attorney’s testimony concerning a deceased client’s communications after “balanc[ing] the necessity for revealing the substance of the [attorney-client conversation] against the unlikelihood of any cognizable injury to the rights, interests, estate or memory of [the client].” See Cohen , supra , at 464, 357 A. 2d, at 693. The American Law Institute, moreover, has recently recommended withholding the privilege when the communication “bears on a litigated issue of pivotal significance” and has suggested that courts “balance the interest in confidentiality against any exceptional need for the communication.” Restatement (Third) of the Law Governing Lawyers §127, at 431, Comment d ; see also 2 C. Mueller & L. Kirkpatrick, Federal Evidence, §199, p. 380 (2d ed. 1994) (“[I]f a deceased client has confessed to criminal acts that are later charged to another, surely the latter’s need for evidence sometimes outweighs the interest in preserving the confidences”).

Where the exoneration of an innocent criminal defendant or a compelling law enforcement interest is at stake, the harm of precluding critical evidence that is unavailable by any other means outweighs the potential disincentive to forthright communication. In my view, the cost of silence warrants a narrow exception to the rule that the attorney-client privilege survives the death of the client. Moreover, although I disagree with the Court of Appeals’ notion that the context of an initial client interview affects the applicability of the work product doctrine, I do not believe that the doctrine applies where the material concerns a client who is no longer a potential party to adversarial litigation.

Accordingly, I would affirm the judgment of the Court of Appeals. Although the District Court examined the documents in camera , it has not had an opportunity to balance these competing considerations and decide whether the privilege should be trumped in the particular circumstances of this case. Thus, I agree with the Court of Appeals’ decision to remand for a determination whether any portion of the notes must be disclosed.

With respect, I dissent.


TOP

Dissent

SWIDLER & BERLIN and JAMES HAMILTON,
PETITIONERS v. UNITED STATES

on writ of certiorari to the united states court of appeals for the district of columbia circuit


[June 25, 1998]

Justice O’Connor , with whom Justice Scalia and Justice Thomas join, dissenting.

Although the attorney-client privilege ordinarily will survive the death of the client, I do not agree with the Court that it inevitably precludes disclosure of a deceased client’s communications in criminal proceedings. In my view, a criminal defendant’s right to exculpatory evidence or a compelling law enforcement need for informa- tion may, where the testimony is not available from other sources, override a client’s posthumous interest in confidentiality.

We have long recognized that “[t]he fundamental basis upon which all rules of evidence must rest—if they are to rest upon reason—is their adaptation to the successful development of the truth.” Funk v. United States, 290 U. S. 371, 381 (1933) . In light of the heavy burden that they place on the search for truth, see United States v. Nixon, 418 U. S. 683, 708–710 (1974) , “[e]videntiary privileges in litigation are not favored, and even those rooted in the Constitution must give way in proper circumstances,” Herbert v. Lando, 441 U. S. 153, 175 (1979) . Consequently, we construe the scope of privileges narrowly. See Jaffee v. Redmond, 518 U. S. 1, 19 (1996) ( Scalia , J., dissenting); see also University of Pennsylvania v. EEOC, 493 U. S. 182, 189 (1990) . We are reluctant to recognize a privilege or read an existing one expansively unless to do so will serve a “public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.” Trammel v. United States, 445 U. S. 40, 50 (1980) (internal quotation marks omitted).

The attorney-client privilege promotes trust in the representational relationship, thereby facilitating the provision of legal services and ultimately the administration of justice. See Upjohn Co. v. United States, 449 U. S. 383, 389 (1981) . The systemic benefits of the privilege are commonly understood to outweigh the harm caused by excluding critical evidence. A privilege should operate, however, only where “necessary to achieve its purpose,” see Fisher v. United States, 425 U. S. 391, 403 (1976) , and an invocation of the attorney-client privilege should not go unexamined “when it is shown that the interests of the administration of justice can only be frustrated by [its] exercise,” Cohen v. Jenkintown Cab Co. , 238 Pa. Super. 456, 464, 357 A. 2d 689, 693–694 (1976).

I agree that a deceased client may retain a personal, reputational, and economic interest in confidentiality. See ante , at 7. But, after death, the potential that disclosure will harm the client’s interests has been greatly diminished, and the risk that the client will be held criminally liable has abated altogether. Thus, some commentators suggest that terminating the privilege upon the client’s death “could not to any substantial degree lessen the encouragement for free disclosure which is [its] purpose.” 1 J. Strong, McCormick on Evidence §94, p. 350 (4th ed. 1992); see also Restatement (Third) of the Law Governing Lawyers §127, Comment d (Proposed Final Draft No. 1, Mar. 29, 1996). This diminished risk is coupled with a heightened urgency for discovery of a deceased client’s communications in the criminal context. The privilege does not “protect[] disclosure of the underlying facts by those who communicated with the attorney,” Upjohn , supra , at 395, and were the client living, prosecutors could grant immunity and compel the relevant testimony. After a client’s death, however, if the privilege precludes an attorney from testifying in the client’s stead, a complete “loss of crucial information” will often result, see 24 C. Wright & K. Graham, Federal Practice and Procedure §5498, p. 484 (1986).

As the Court of Appeals observed, the costs of recognizing an absolute posthumous privilege can be inordinately high. See In re Sealed Case , 124 F. 3d 230, 233–234 (CADC 1997). Extreme injustice may occur, for example, where a criminal defendant seeks disclosure of a deceased client’s confession to the offense. See State v. Macumber , 112 Ariz. 569, 571, 544 P. 2d 1084, 1086 (1976); cf. In the Matter of a John Doe Grand Jury Investigation , 408 Mass. 480, 486, 562 N. E. 2d 69, 72 (1990) (Nolan, J., dissenting). In my view, the paramount value that our criminal justice system places on protecting an innocent defendant should outweigh a deceased client’s interest in preserving confidences. See, e.g. , Schlup v. Delo, 513 U. S. 298, 324–325 (1995) ; In re Winship, 397 U. S. 358, 371 (1970) (Harlan, J., concurring). Indeed, even petitioner acknowledges that an exception may be appropriate where the constitutional rights of a criminal defendant are at stake. An exception may likewise be warranted in the face of a compelling law enforcement need for the information. “[O]ur historic commitment to the rule of law … is nowhere more profoundly manifest than in our view that the twofold aim of criminal justice is that guilt shall not escape or innocence suffer.” Nixon , supra , at 709 (internal quotation marks omitted); see also Herrera v. Collins, 506 U. S. 390, 398 (1993) . Given that the complete exclusion of relevant evidence from a criminal trial or investigation may distort the record, mislead the factfinder, and undermine the central truth-seeking function of the courts, I do not believe that the attorney-client privilege should act as an absolute bar to the disclosure of a deceased client’s communications. When the privilege is asserted in the criminal context, and a showing is made that the communications at issue contain necessary factual information not otherwise available, courts should be permitted to assess whether interests in fairness and accuracy outweigh the justifications for the privilege.

A number of exceptions to the privilege already qualify its protections, and an attorney “who tells his client that the expected communications are absolutely and forever privileged is oversimplifying a bit.” 124 F. 3d, at 235. In the situation where the posthumous privilege most frequently arises—a dispute between heirs over the decedent’s will—the privilege is widely recognized to give way to the interest in settling the estate. See Glover v. Patten, 165 U. S. 394, 406–408 (1897) . This testamentary exception, moreover, may be invoked in some cases where the decedent would not have chosen to waive the privilege. For example, “a decedent might want to provide for an illegitimate child but at the same time much prefer that the relationship go undisclosed.” 124 F. 3d, at 234. Among the Court’s rationales for a broad construction of the posthumous privilege is its assertion that “[m]any attorneys act as counselors on personal and family matters, where, in the course of obtaining the desired advice, confidences about family members or financial problems must be revealed . . . which the client would not wish divulged.” Ante , at 8. That reasoning, however, would apply in the testamentary context with equal force. Nor are other existing exceptions to the privilege—for example, the crime-fraud exception or the exceptions for claims relating to attorney competence or compensation—necessarily consistent with “encouraging full and frank communication” or “protecting the client’s interests,” ante , at 10. Rather, those exceptions reflect the understanding that, in certain circumstances, the privilege “ ‘ceases to operate’ ” as a safeguard on “the proper functioning of our adversary system.” See United States v. Zolin, 491 U. S. 554, 562–563 (1989) .

Finally, the common law authority for the proposition that the privilege remains absolute after the client’s death is not a monolithic body of precedent. Indeed, the Court acknowledges that most cases merely “presume the privilege survives,” see ante , at 4–5, and it relies on the case law’s “implicit acceptance” of a continuous privilege, see ante , at 6. Opinions squarely addressing the posthumous force of the privilege “are relatively rare.” See 124 F. 3d, at 232. And even in those decisions expressly holding that the privilege continues after the death of the client, courts do not typically engage in detailed reasoning, but rather conclude that the cases construing the testamentary exception imply survival of the privilege. See, e.g. , Glover , supra , at 406–408; see also Wright & Graham, supra , §5498, at 484 (“Those who favor an eternal duration for the privilege seldom do much by way of justifying this in terms of policy”).

Moreover, as the Court concedes, see ante , at 4, 6, there is some authority for the proposition that a deceased client’s communications may be revealed, even in circumstances outside of the testamentary context. California’s Evidence Code, for example, provides that the attorney-client privilege continues only until the deceased client’s estate is finally distributed, noting that “there is little reason to preserve secrecy at the expense of excluding relevant evidence after the estate is wound up and the representative is discharged.” Cal. Evid. Code Ann. §954, and comment, p. 232, §952 (West 1995). And a state appellate court has admitted an attorney’s testimony concerning a deceased client’s communications after “balanc[ing] the necessity for revealing the substance of the [attorney-client conversation] against the unlikelihood of any cognizable injury to the rights, interests, estate or memory of [the client].” See Cohen , supra , at 464, 357 A. 2d, at 693. The American Law Institute, moreover, has recently recommended withholding the privilege when the communication “bears on a litigated issue of pivotal significance” and has suggested that courts “balance the interest in confidentiality against any exceptional need for the communication.” Restatement (Third) of the Law Governing Lawyers §127, at 431, Comment d ; see also 2 C. Mueller & L. Kirkpatrick, Federal Evidence, §199, p. 380 (2d ed. 1994) (“[I]f a deceased client has confessed to criminal acts that are later charged to another, surely the latter’s need for evidence sometimes outweighs the interest in preserving the confidences”).

Where the exoneration of an innocent criminal defendant or a compelling law enforcement interest is at stake, the harm of precluding critical evidence that is unavailable by any other means outweighs the potential disincentive to forthright communication. In my view, the cost of silence warrants a narrow exception to the rule that the attorney-client privilege survives the death of the client. Moreover, although I disagree with the Court of Appeals’ notion that the context of an initial client interview affects the applicability of the work product doctrine, I do not believe that the doctrine applies where the material concerns a client who is no longer a potential party to adversarial litigation.

Accordingly, I would affirm the judgment of the Court of Appeals. Although the District Court examined the documents in camera , it has not had an opportunity to balance these competing considerations and decide whether the privilege should be trumped in the particular circumstances of this case. Thus, I agree with the Court of Appeals’ decision to remand for a determination whether any portion of the notes must be disclosed.

With respect, I dissent.


TOP

Dissent

SWIDLER & BERLIN and JAMES HAMILTON,
PETITIONERS v. UNITED STATES

on writ of certiorari to the united states court of appeals for the district of columbia circuit


[June 25, 1998]

Justice O’Connor , with whom Justice Scalia and Justice Thomas join, dissenting.

Although the attorney-client privilege ordinarily will survive the death of the client, I do not agree with the Court that it inevitably precludes disclosure of a deceased client’s communications in criminal proceedings. In my view, a criminal defendant’s right to exculpatory evidence or a compelling law enforcement need for informa- tion may, where the testimony is not available from other sources, override a client’s posthumous interest in confidentiality.

We have long recognized that “[t]he fundamental basis upon which all rules of evidence must rest—if they are to rest upon reason—is their adaptation to the successful development of the truth.” Funk v. United States, 290 U. S. 371, 381 (1933) . In light of the heavy burden that they place on the search for truth, see United States v. Nixon, 418 U. S. 683, 708–710 (1974) , “[e]videntiary privileges in litigation are not favored, and even those rooted in the Constitution must give way in proper circumstances,” Herbert v. Lando, 441 U. S. 153, 175 (1979) . Consequently, we construe the scope of privileges narrowly. See Jaffee v. Redmond, 518 U. S. 1, 19 (1996) ( Scalia , J., dissenting); see also University of Pennsylvania v. EEOC, 493 U. S. 182, 189 (1990) . We are reluctant to recognize a privilege or read an existing one expansively unless to do so will serve a “public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.” Trammel v. United States, 445 U. S. 40, 50 (1980) (internal quotation marks omitted).

The attorney-client privilege promotes trust in the representational relationship, thereby facilitating the provision of legal services and ultimately the administration of justice. See Upjohn Co. v. United States, 449 U. S. 383, 389 (1981) . The systemic benefits of the privilege are commonly understood to outweigh the harm caused by excluding critical evidence. A privilege should operate, however, only where “necessary to achieve its purpose,” see Fisher v. United States, 425 U. S. 391, 403 (1976) , and an invocation of the attorney-client privilege should not go unexamined “when it is shown that the interests of the administration of justice can only be frustrated by [its] exercise,” Cohen v. Jenkintown Cab Co. , 238 Pa. Super. 456, 464, 357 A. 2d 689, 693–694 (1976).

I agree that a deceased client may retain a personal, reputational, and economic interest in confidentiality. See ante , at 7. But, after death, the potential that disclosure will harm the client’s interests has been greatly diminished, and the risk that the client will be held criminally liable has abated altogether. Thus, some commentators suggest that terminating the privilege upon the client’s death “could not to any substantial degree lessen the encouragement for free disclosure which is [its] purpose.” 1 J. Strong, McCormick on Evidence §94, p. 350 (4th ed. 1992); see also Restatement (Third) of the Law Governing Lawyers §127, Comment d (Proposed Final Draft No. 1, Mar. 29, 1996). This diminished risk is coupled with a heightened urgency for discovery of a deceased client’s communications in the criminal context. The privilege does not “protect[] disclosure of the underlying facts by those who communicated with the attorney,” Upjohn , supra , at 395, and were the client living, prosecutors could grant immunity and compel the relevant testimony. After a client’s death, however, if the privilege precludes an attorney from testifying in the client’s stead, a complete “loss of crucial information” will often result, see 24 C. Wright & K. Graham, Federal Practice and Procedure §5498, p. 484 (1986).

As the Court of Appeals observed, the costs of recognizing an absolute posthumous privilege can be inordinately high. See In re Sealed Case , 124 F. 3d 230, 233–234 (CADC 1997). Extreme injustice may occur, for example, where a criminal defendant seeks disclosure of a deceased client’s confession to the offense. See State v. Macumber , 112 Ariz. 569, 571, 544 P. 2d 1084, 1086 (1976); cf. In the Matter of a John Doe Grand Jury Investigation , 408 Mass. 480, 486, 562 N. E. 2d 69, 72 (1990) (Nolan, J., dissenting). In my view, the paramount value that our criminal justice system places on protecting an innocent defendant should outweigh a deceased client’s interest in preserving confidences. See, e.g. , Schlup v. Delo, 513 U. S. 298, 324–325 (1995) ; In re Winship, 397 U. S. 358, 371 (1970) (Harlan, J., concurring). Indeed, even petitioner acknowledges that an exception may be appropriate where the constitutional rights of a criminal defendant are at stake. An exception may likewise be warranted in the face of a compelling law enforcement need for the information. “[O]ur historic commitment to the rule of law … is nowhere more profoundly manifest than in our view that the twofold aim of criminal justice is that guilt shall not escape or innocence suffer.” Nixon , supra , at 709 (internal quotation marks omitted); see also Herrera v. Collins, 506 U. S. 390, 398 (1993) . Given that the complete exclusion of relevant evidence from a criminal trial or investigation may distort the record, mislead the factfinder, and undermine the central truth-seeking function of the courts, I do not believe that the attorney-client privilege should act as an absolute bar to the disclosure of a deceased client’s communications. When the privilege is asserted in the criminal context, and a showing is made that the communications at issue contain necessary factual information not otherwise available, courts should be permitted to assess whether interests in fairness and accuracy outweigh the justifications for the privilege.

A number of exceptions to the privilege already qualify its protections, and an attorney “who tells his client that the expected communications are absolutely and forever privileged is oversimplifying a bit.” 124 F. 3d, at 235. In the situation where the posthumous privilege most frequently arises—a dispute between heirs over the decedent’s will—the privilege is widely recognized to give way to the interest in settling the estate. See Glover v. Patten, 165 U. S. 394, 406–408 (1897) . This testamentary exception, moreover, may be invoked in some cases where the decedent would not have chosen to waive the privilege. For example, “a decedent might want to provide for an illegitimate child but at the same time much prefer that the relationship go undisclosed.” 124 F. 3d, at 234. Among the Court’s rationales for a broad construction of the posthumous privilege is its assertion that “[m]any attorneys act as counselors on personal and family matters, where, in the course of obtaining the desired advice, confidences about family members or financial problems must be revealed . . . which the client would not wish divulged.” Ante , at 8. That reasoning, however, would apply in the testamentary context with equal force. Nor are other existing exceptions to the privilege—for example, the crime-fraud exception or the exceptions for claims relating to attorney competence or compensation—necessarily consistent with “encouraging full and frank communication” or “protecting the client’s interests,” ante , at 10. Rather, those exceptions reflect the understanding that, in certain circumstances, the privilege “ ‘ceases to operate’ ” as a safeguard on “the proper functioning of our adversary system.” See United States v. Zolin, 491 U. S. 554, 562–563 (1989) .

Finally, the common law authority for the proposition that the privilege remains absolute after the client’s death is not a monolithic body of precedent. Indeed, the Court acknowledges that most cases merely “presume the privilege survives,” see ante , at 4–5, and it relies on the case law’s “implicit acceptance” of a continuous privilege, see ante , at 6. Opinions squarely addressing the posthumous force of the privilege “are relatively rare.” See 124 F. 3d, at 232. And even in those decisions expressly holding that the privilege continues after the death of the client, courts do not typically engage in detailed reasoning, but rather conclude that the cases construing the testamentary exception imply survival of the privilege. See, e.g. , Glover , supra , at 406–408; see also Wright & Graham, supra , §5498, at 484 (“Those who favor an eternal duration for the privilege seldom do much by way of justifying this in terms of policy”).

Moreover, as the Court concedes, see ante , at 4, 6, there is some authority for the proposition that a deceased client’s communications may be revealed, even in circumstances outside of the testamentary context. California’s Evidence Code, for example, provides that the attorney-client privilege continues only until the deceased client’s estate is finally distributed, noting that “there is little reason to preserve secrecy at the expense of excluding relevant evidence after the estate is wound up and the representative is discharged.” Cal. Evid. Code Ann. §954, and comment, p. 232, §952 (West 1995). And a state appellate court has admitted an attorney’s testimony concerning a deceased client’s communications after “balanc[ing] the necessity for revealing the substance of the [attorney-client conversation] against the unlikelihood of any cognizable injury to the rights, interests, estate or memory of [the client].” See Cohen , supra , at 464, 357 A. 2d, at 693. The American Law Institute, moreover, has recently recommended withholding the privilege when the communication “bears on a litigated issue of pivotal significance” and has suggested that courts “balance the interest in confidentiality against any exceptional need for the communication.” Restatement (Third) of the Law Governing Lawyers §127, at 431, Comment d ; see also 2 C. Mueller & L. Kirkpatrick, Federal Evidence, §199, p. 380 (2d ed. 1994) (“[I]f a deceased client has confessed to criminal acts that are later charged to another, surely the latter’s need for evidence sometimes outweighs the interest in preserving the confidences”).

Where the exoneration of an innocent criminal defendant or a compelling law enforcement interest is at stake, the harm of precluding critical evidence that is unavailable by any other means outweighs the potential disincentive to forthright communication. In my view, the cost of silence warrants a narrow exception to the rule that the attorney-client privilege survives the death of the client. Moreover, although I disagree with the Court of Appeals’ notion that the context of an initial client interview affects the applicability of the work product doctrine, I do not believe that the doctrine applies where the material concerns a client who is no longer a potential party to adversarial litigation.

Accordingly, I would affirm the judgment of the Court of Appeals. Although the District Court examined the documents in camera , it has not had an opportunity to balance these competing considerations and decide whether the privilege should be trumped in the particular circumstances of this case. Thus, I agree with the Court of Appeals’ decision to remand for a determination whether any portion of the notes must be disclosed.

With respect, I dissent.


TOP

Dissent

SWIDLER & BERLIN and JAMES HAMILTON,
PETITIONERS v. UNITED STATES

on writ of certiorari to the united states court of appeals for the district of columbia circuit


[June 25, 1998]

Justice O’Connor , with whom Justice Scalia and Justice Thomas join, dissenting.

Although the attorney-client privilege ordinarily will survive the death of the client, I do not agree with the Court that it inevitably precludes disclosure of a deceased client’s communications in criminal proceedings. In my view, a criminal defendant’s right to exculpatory evidence or a compelling law enforcement need for informa- tion may, where the testimony is not available from other sources, override a client’s posthumous interest in confidentiality.

We have long recognized that “[t]he fundamental basis upon which all rules of evidence must rest—if they are to rest upon reason—is their adaptation to the successful development of the truth.” Funk v. United States, 290 U. S. 371, 381 (1933) . In light of the heavy burden that they place on the search for truth, see United States v. Nixon, 418 U. S. 683, 708–710 (1974) , “[e]videntiary privileges in litigation are not favored, and even those rooted in the Constitution must give way in proper circumstances,” Herbert v. Lando, 441 U. S. 153, 175 (1979) . Consequently, we construe the scope of privileges narrowly. See Jaffee v. Redmond, 518 U. S. 1, 19 (1996) ( Scalia , J., dissenting); see also University of Pennsylvania v. EEOC, 493 U. S. 182, 189 (1990) . We are reluctant to recognize a privilege or read an existing one expansively unless to do so will serve a “public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.” Trammel v. United States, 445 U. S. 40, 50 (1980) (internal quotation marks omitted).

The attorney-client privilege promotes trust in the representational relationship, thereby facilitating the provision of legal services and ultimately the administration of justice. See Upjohn Co. v. United States, 449 U. S. 383, 389 (1981) . The systemic benefits of the privilege are commonly understood to outweigh the harm caused by excluding critical evidence. A privilege should operate, however, only where “necessary to achieve its purpose,” see Fisher v. United States, 425 U. S. 391, 403 (1976) , and an invocation of the attorney-client privilege should not go unexamined “when it is shown that the interests of the administration of justice can only be frustrated by [its] exercise,” Cohen v. Jenkintown Cab Co. , 238 Pa. Super. 456, 464, 357 A. 2d 689, 693–694 (1976).

I agree that a deceased client may retain a personal, reputational, and economic interest in confidentiality. See ante , at 7. But, after death, the potential that disclosure will harm the client’s interests has been greatly diminished, and the risk that the client will be held criminally liable has abated altogether. Thus, some commentators suggest that terminating the privilege upon the client’s death “could not to any substantial degree lessen the encouragement for free disclosure which is [its] purpose.” 1 J. Strong, McCormick on Evidence §94, p. 350 (4th ed. 1992); see also Restatement (Third) of the Law Governing Lawyers §127, Comment d (Proposed Final Draft No. 1, Mar. 29, 1996). This diminished risk is coupled with a heightened urgency for discovery of a deceased client’s communications in the criminal context. The privilege does not “protect[] disclosure of the underlying facts by those who communicated with the attorney,” Upjohn , supra , at 395, and were the client living, prosecutors could grant immunity and compel the relevant testimony. After a client’s death, however, if the privilege precludes an attorney from testifying in the client’s stead, a complete “loss of crucial information” will often result, see 24 C. Wright & K. Graham, Federal Practice and Procedure §5498, p. 484 (1986).

As the Court of Appeals observed, the costs of recognizing an absolute posthumous privilege can be inordinately high. See In re Sealed Case , 124 F. 3d 230, 233–234 (CADC 1997). Extreme injustice may occur, for example, where a criminal defendant seeks disclosure of a deceased client’s confession to the offense. See State v. Macumber , 112 Ariz. 569, 571, 544 P. 2d 1084, 1086 (1976); cf. In the Matter of a John Doe Grand Jury Investigation , 408 Mass. 480, 486, 562 N. E. 2d 69, 72 (1990) (Nolan, J., dissenting). In my view, the paramount value that our criminal justice system places on protecting an innocent defendant should outweigh a deceased client’s interest in preserving confidences. See, e.g. , Schlup v. Delo, 513 U. S. 298, 324–325 (1995) ; In re Winship, 397 U. S. 358, 371 (1970) (Harlan, J., concurring). Indeed, even petitioner acknowledges that an exception may be appropriate where the constitutional rights of a criminal defendant are at stake. An exception may likewise be warranted in the face of a compelling law enforcement need for the information. “[O]ur historic commitment to the rule of law … is nowhere more profoundly manifest than in our view that the twofold aim of criminal justice is that guilt shall not escape or innocence suffer.” Nixon , supra , at 709 (internal quotation marks omitted); see also Herrera v. Collins, 506 U. S. 390, 398 (1993) . Given that the complete exclusion of relevant evidence from a criminal trial or investigation may distort the record, mislead the factfinder, and undermine the central truth-seeking function of the courts, I do not believe that the attorney-client privilege should act as an absolute bar to the disclosure of a deceased client’s communications. When the privilege is asserted in the criminal context, and a showing is made that the communications at issue contain necessary factual information not otherwise available, courts should be permitted to assess whether interests in fairness and accuracy outweigh the justifications for the privilege.

A number of exceptions to the privilege already qualify its protections, and an attorney “who tells his client that the expected communications are absolutely and forever privileged is oversimplifying a bit.” 124 F. 3d, at 235. In the situation where the posthumous privilege most frequently arises—a dispute between heirs over the decedent’s will—the privilege is widely recognized to give way to the interest in settling the estate. See Glover v. Patten, 165 U. S. 394, 406–408 (1897) . This testamentary exception, moreover, may be invoked in some cases where the decedent would not have chosen to waive the privilege. For example, “a decedent might want to provide for an illegitimate child but at the same time much prefer that the relationship go undisclosed.” 124 F. 3d, at 234. Among the Court’s rationales for a broad construction of the posthumous privilege is its assertion that “[m]any attorneys act as counselors on personal and family matters, where, in the course of obtaining the desired advice, confidences about family members or financial problems must be revealed . . . which the client would not wish divulged.” Ante , at 8. That reasoning, however, would apply in the testamentary context with equal force. Nor are other existing exceptions to the privilege—for example, the crime-fraud exception or the exceptions for claims relating to attorney competence or compensation—necessarily consistent with “encouraging full and frank communication” or “protecting the client’s interests,” ante , at 10. Rather, those exceptions reflect the understanding that, in certain circumstances, the privilege “ ‘ceases to operate’ ” as a safeguard on “the proper functioning of our adversary system.” See United States v. Zolin, 491 U. S. 554, 562–563 (1989) .

Finally, the common law authority for the proposition that the privilege remains absolute after the client’s death is not a monolithic body of precedent. Indeed, the Court acknowledges that most cases merely “presume the privilege survives,” see ante , at 4–5, and it relies on the case law’s “implicit acceptance” of a continuous privilege, see ante , at 6. Opinions squarely addressing the posthumous force of the privilege “are relatively rare.” See 124 F. 3d, at 232. And even in those decisions expressly holding that the privilege continues after the death of the client, courts do not typically engage in detailed reasoning, but rather conclude that the cases construing the testamentary exception imply survival of the privilege. See, e.g. , Glover , supra , at 406–408; see also Wright & Graham, supra , §5498, at 484 (“Those who favor an eternal duration for the privilege seldom do much by way of justifying this in terms of policy”).

Moreover, as the Court concedes, see ante , at 4, 6, there is some authority for the proposition that a deceased client’s communications may be revealed, even in circumstances outside of the testamentary context. California’s Evidence Code, for example, provides that the attorney-client privilege continues only until the deceased client’s estate is finally distributed, noting that “there is little reason to preserve secrecy at the expense of excluding relevant evidence after the estate is wound up and the representative is discharged.” Cal. Evid. Code Ann. §954, and comment, p. 232, §952 (West 1995). And a state appellate court has admitted an attorney’s testimony concerning a deceased client’s communications after “balanc[ing] the necessity for revealing the substance of the [attorney-client conversation] against the unlikelihood of any cognizable injury to the rights, interests, estate or memory of [the client].” See Cohen , supra , at 464, 357 A. 2d, at 693. The American Law Institute, moreover, has recently recommended withholding the privilege when the communication “bears on a litigated issue of pivotal significance” and has suggested that courts “balance the interest in confidentiality against any exceptional need for the communication.” Restatement (Third) of the Law Governing Lawyers §127, at 431, Comment d ; see also 2 C. Mueller & L. Kirkpatrick, Federal Evidence, §199, p. 380 (2d ed. 1994) (“[I]f a deceased client has confessed to criminal acts that are later charged to another, surely the latter’s need for evidence sometimes outweighs the interest in preserving the confidences”).

Where the exoneration of an innocent criminal defendant or a compelling law enforcement interest is at stake, the harm of precluding critical evidence that is unavailable by any other means outweighs the potential disincentive to forthright communication. In my view, the cost of silence warrants a narrow exception to the rule that the attorney-client privilege survives the death of the client. Moreover, although I disagree with the Court of Appeals’ notion that the context of an initial client interview affects the applicability of the work product doctrine, I do not believe that the doctrine applies where the material concerns a client who is no longer a potential party to adversarial litigation.

Accordingly, I would affirm the judgment of the Court of Appeals. Although the District Court examined the documents in camera , it has not had an opportunity to balance these competing considerations and decide whether the privilege should be trumped in the particular circumstances of this case. Thus, I agree with the Court of Appeals’ decision to remand for a determination whether any portion of the notes must be disclosed.

With respect, I dissent.