Justices Skeptical of Effort by Starr to Waive Privilege

Every day, thousands of Americans talk over problems with a doctor, a priest, a psychotherapist or a lawyer. These special conversations have been protected as confidential, not just by tradition but by law.

On Monday, the Supreme Court considered a plea from independent counsel Kenneth W. Starr that the lawyer-client privilege be waived in the case of former White House Deputy Counsel Vincent Foster because he is dead.

A ruling in Starr’s favor could call into question the attorney-client privilege every time a lawyer’s client dies. And, critics fear, carving out an exception in this case could erode the privacy privileges in relationships with doctors and other professionals.

Starr has maintained that he needs to see three pages of notes taken by a lawyer who spoke with Foster, a longtime confidant of President Clinton, nine days before Foster committed suicide in July 1993. “Privileges obstruct the search for the truth,” an associate of Starr told the justices.

But for the second time in a week, the high court gave the independent counsel a less than enthusiastic reception.

On Thursday, the justices dealt Starr a setback by flatly rejecting his bid for a speedy review of two other legal claims: whether White House lawyers can be compelled to disclose their conversations with Clinton and whether the Secret Service can be forced to tell what its agents have seen while guarding the president. Those questions will first be considered this summer by a U.S. appeals court here.

On Monday, the comments and questions by most of the justices indicated that they are skeptical of Starr’s request that they allow a breach of the privacy privilege between lawyers and their clients.

Asked Justice John Paul Stevens: “Why do you presume the conversation [between Foster and the lawyer] is about a crime? Lawyers talk to clients about lots of things.”

In a series of rhetorical examples, justices noted that a family may talk to a lawyer about financial problems, Stevens noted. Or a father may mention that his son has a drug problem or that a relative has business troubles. If the father dies, can a prosecutor force the lawyer to testify against the son?

Yes, sometimes, said Brett Kavanaugh, Starr’s associate, because the demands of a criminal inquiry can outweigh the privilege of privacy.

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That response did not appear to sway the justices, most of whom spent parts of their careers as lawyers representing private clients.

For generations, the “understanding of the profession” has been that a conversation between a lawyer and a client is private, said Justice David H. Souter.

And this privilege has been deemed as absolute and unqualified, added Justice Sandra Day O’Connor. If privacy is not assured, clients will not speak candidly with their lawyers, the court has said in the past.

The Foster case concerns only a small part of Starr’s far-flung investigation of the Clinton White House. The independent counsel has said that he is still trying to learn whether First Lady Hillary Rodham Clinton or others lied about the circumstances involving the firing of seven employees in the White House travel office. Foster’s notes may shed light on the issue, he believes.

But when the Supreme Court agreed to review the case in March, it took on a wider significance on two levels.

First, the outcome could affect the many ordinary Americans who consult a lawyer in their dying days.

The American Bar Assn., the National Hospice Organization and the National Assn. of Criminal Defense Lawyers filed briefs with the court urging it not to weaken the traditional privacy right. To do so “may confound thousands of persons who, anticipating their own deaths, seek the advice of attorneys to assist in ordering their affairs,” the ABA said. “Many of these people undoubtedly have secrets and confidences that, if revealed, would be at least highly embarrassing to themselves or their friends and loved ones.”

Secondly, the case is being closely watched as a test of whether the court will side with the Clintons or the independent counsel in their battles over legal privileges.

The courtroom was filled Monday with the capital’s preeminent attorneys. Starr sat at the counsel’s table next to Kavanaugh. Nearby sat White House counsel Charles F.C. Ruff. Also in the audience were the Clintons’ private lawyer, David E. Kendall, and Jacob A. Stein, the veteran white-collar crime specialist recently hired by Monica S. Lewinsky, the former White House intern whose relationship with the president is being investigated by Starr.

Last year, the U.S. court of appeals, on a 2-1 vote, sided with Starr in the Foster notes case. It ruled that, because Foster was dead, he no longer had a fear of prosecution and, therefore, that his lawyer’s claim of confidentiality should no longer be honored.

The lawyer, James Hamilton, resisted Starr’s subpoena and appealed the issue to the Supreme Court. The justices agreed to review the case (Swidler & Berlin vs. United States, 97-1192), but they also agreed to Starr’s request to do it on a speedy basis so a ruling could be handed down before the court adjourns for its summer recess.

“People do care about their reputations,” Hamilton told the court. If clients think their secrets will be disclosed after they die, it will “have a chilling effect in client candor,” he said.

But what if a client reveals that he has committed a murder blamed on another person? asked Justice O’Connor. Should a lawyer keep that secret, even after his client dies?

No, Hamilton replied. If an innocent person is being charged with a crime, the lawyer should disclose the truth, he said.

“So you make an exception [to the lawyer-client privilege] in criminal cases!” interjected Justice Antonin Scalia. Why not here “if the privilege is not absolute?” he asked.

Scalia, who spoke in favor of Starr’s view, said that some “conspiracy theorists” believe Foster was murdered. Surely, he said, if his lawyer knew that Foster feared he would be murdered, the lawyer should reveal it, Scalia said.

“Courts like to get to the truth. It seems to me quite disproportionate” to suggest confidentiality of past conversations is more important than revealing the truth, Scalia said.

No one, however, has suggested that Hamilton’s notes contain explosive revelations. And other justices wondered about the impact of waiving confidentiality in other criminal cases.

Suppose five defendants were on trial in an organized crime case, each with his own lawyer, said Justice Anthony M. Kennedy. And then suppose one defendant dies. Can the prosecutor force the lawyer for the dead defendant to tell what he knows?

Yes, said Starr’s assistant.

“It could put him [the lawyer] in grave danger,” Kennedy commented, since the other defendants would have good reason to permanently silence the attorney.

Early in the argument, Kennedy, often a swing vote, sounded receptive to Starr’s need for the notes. But by the end of the hour, he seemed inclined to uphold the rule of absolute privacy.

“The profession might be a little poorer if we adopt the restrictions you are urging,” he told Starr’s assistant.

A ruling in the case can be expected by the end of the month.

Meanwhile, in another actions, the court:

* Ruled that an American Indian activist who fled parole in Ohio must be returned there by New Mexico officials. In a 9-0 ruling, the justices overturned a New Mexico state court, which refused the automatic extradition request. Forty states, including California, urged the justices to order the extradition and they did so in a brief opinion (New Mexico vs. Reed, 97-1217).

* Agreed to consider the issue of “environmental racism” in its next term. Black residents of Chester, Pa., have used the civil rights laws to challenge official decisions to locate waste treatment plants in their neighborhoods. In the fall, the justices will hear the state’s appeal (Seif vs. Chester Residents, 97-1620).