Justices to Rule on Privilege After Death

Does the attorney-client privilege of confidentiality die when the client dies?

Independent counsel Kenneth W. Starr, who is seeking notes from an attorney consulted by the late Deputy White House Counsel Vincent Foster, says that it does. As part of his relentless investigation into alleged wrongdoing by the Clinton administration, Starr is still seeking evidence that the president and the first lady lied about their roles in the firing of seven workers in the White House travel office in May 1993.

Foster, who was then defending the Clintons in the matter, apparently believed that he would come under investigation too. On July 11, 1993, he spoke for two hours with a prominent Washington lawyer, James Hamilton, who took three pages of notes on their conversation. At the top of the pages he wrote “Privileged.”

Nine days later, Foster drove to a Virginia park overlooking the Potomac River and shot himself.

Now, the Supreme Court is being asked to decide whether Hamilton’s notes must be turned over to Starr. And the outcome of this bitter legal dispute could affect the many thousands of Americans who consult a lawyer in their final years.

Until recently, private conversations between a lawyer and a client were seen as absolutely off limits to prosecutors. Just as with a person who confides in a priest or a psychotherapist, a person who consults a lawyer might not speak candidly if his or her words later would be revealed.

For this reason, the law has long recognized the so-called attorney-client privilege.

But since taking over the investigation into the Whitewater land deal in 1994, Starr has mounted a determined attack on what he recently referred to as “the culture of permanent secrecy” at the White House. In doing so, he has won two major rulings that cut large holes in the attorney-client privilege.

Last year, he won a ruling from a U.S. appeals court saying that government lawyers are not really lawyers entitled to invoke the attorney-client privilege. The Supreme Court refused to take up the issue in June. As a result, the White House was forced to turn over notes taken by two attorneys in the White House counsel’s office who met with First Lady Hillary Rodham Clinton after she testified before the grand jury on Whitewater-related issues.

And in August, another U.S. appeals court ruled that in criminal cases, the attorney-client privilege expires when the client does. In its 2-1 ruling, the appeals court said that Foster’s lawyer cannot shield his notes from Starr’s prosecutors.

Last month, Hamilton appealed the issue to the Supreme Court. The justices are expected to decide in a few weeks whether to take up the case of Swidler & Berlin (Hamilton’s firm) vs. United States, 97-1192.

The American Bar Assn., the National Assn. of Criminal Defense Lawyers and several hospice groups have joined in urging the high court to review the case. They maintain that the dying will be dissuaded from confiding in lawyers if their secrets can be revealed after they die.

“Many thousands of persons, anticipating their own deaths, seek the advice of attorneys to assist in ordering their affairs,” the ABA said. “Many of them undoubtedly have secrets and confidences that, if revealed, would be at the least highly embarrassing to themselves or their friends and loved ones.”

In the travel office case, congressional investigators maintained that the Clintons removed the longtime federal employees so they could be replaced by Arkansas cronies. They also asserted that the Clintons hid their roles in the matter.

Once Starr was at work on the Whitewater case, a three-judge panel also assigned him to look into the travel office matter.

In a brief filed late Tuesday, Starr urged the Supreme Court to be wary of what he termed the “desired culture of permanent secrecy” surrounding the Clintons and the White House. He also argued that, because “criminal liability ceases at death,” Foster’s lawyer and his family have no compelling reason to keep the notes secret.

But Hamilton has maintained that the common practice in many states, including California, as well as Justice Department guidelines, is to treat conversations between lawyers and clients as private and off limits to prosecutors, even after a client’s death.

Hamilton also has said that this case is another example of overreaching by Starr, who has come under a barrage of criticism from administration officials for his new inquiry into allegations that the president had a sexual relationship with former White House intern Monica S. Lewinsky and then sought to cover it up illegally.