High Court Bars Starr Bid for Lawyer’s Notes

Rebuffing independent counsel Kenneth W. Starr, the Supreme Court upheld the traditional privilege of confidentiality between lawyers and their clients Thursday and threw out his demand for notes taken by a lawyer for the late White House Deputy Counsel Vincent Foster.

The shield of privacy between a lawyer and a client “is one of the oldest recognized privileges” in the law, said Chief Justice William H. Rehnquist. It has been “accepted for well over a century that the privilege survives the death of the client.”

In simplest terms, the ruling means that Starr will not get three pages of handwritten notes taken five years ago. He has maintained that the notes might shed light on whether First Lady Hillary Rodham Clinton told the truth when she denied ordering the firing of seven White House travel office workers in 1993.

More significant, however, the 6-3 ruling strongly suggests that the court will not bend the traditional rules of law to further Starr’s aggressive and far-flung Whitewater investigation. Instead, the justices upheld the principle of privacy over the needs of prosecutors.

Repeatedly in recent years, Starr has pressed the outer boundaries of the law in his search for evidence. He has demanded notes from White House lawyers, sent possible witnesses to prison for refusing to cooperate, subpoenaed Secret Service agents to appear before his grand jury and summoned White House aides to testify about their conversations with reporters.

All the while, Starr has insisted that the law is on his side. The independent counsel may well have believed that a Supreme Court with a conservative bent would be on his side too. If so, he miscalculated, especially with the chief justice.

Rehnquist values both tradition and confidentiality. Someone arguing for the court to depart from the traditional rule carries a “heavy burden,” he commented, and Starr failed that test.

The chief justice and his colleagues also place a high value on confidentiality. The justices fiercely protect the privacy of the court’s internal deliberations.

“Many attorneys act as counselors on personal and family matters,” Rehnquist said, adding that these conversations can be candid only with the assurance of confidentiality.

The death of a client does not change that equation, he said. “Clients may be concerned about reputation, civil liability or possible harm to friends and family,” he said, and they will not talk to lawyers in the first place if their secrets will be revealed later.

Starr issued a statement saying he is disappointed in the outcome. The issue “has obviously proved to be of considerable difficulty,” he said, referring to the “divided opinions” in the high court. “In all events, we continue to pursue our investigation as thoroughly and expeditiously as possible.”

A White House official accompanying President Clinton in China called the decision “an important validation of the vital issue of attorney-client privilege.”

Legal groups were delighted.

“We are gratified the court has affirmed the sanctity of the attorney-client privilege,” said American Bar Assn. President Jerome J. Shestack.

“Kudos to a Supreme Court which, in the highest traditions of jurisprudence, is willing to clamp down on an out-of-control independent counsel,” said New York attorney Gerald B. Lefcourt, president of the National Assn. of Criminal Defense Lawyers.

The case revived the sad story of Foster, the boyhood friend of Bill Clinton and former law partner of Mrs. Clinton who came to Washington with the new administration, only to get caught in controversies that enveloped the White House.

A congressional committee had hinted at launching an investigation of the travel office firings when Foster visited attorney James Hamilton on a Sunday morning to talk over his problems.

Nine days later, on July 11, 1993, Foster drove to a park overlooking the Potomac River and shot himself.

After taking over the inquiry into the failed real estate venture known as Whitewater, Starr demanded that Hamilton turn over his notes of the conversation. Hamilton refused, citing the attorney-client privilege.

A federal judge initially quashed the subpoena, but last year, a U.S. appeals court sided with Starr on a 2-1 vote. Because the client is dead, the privilege of privacy can be voided, the appeals court said, to further a criminal investigation.

Reversing that ruling in the case (Swidler & Berlin vs. United States, 97-1192), Rehnquist was joined by Justices John Paul Stevens, Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

Justice Sandra Day O’Connor dissented, saying that a “compelling law enforcement need for information” outweighs the privilege of confidentiality. She was joined by Justices Antonin Scalia and Clarence Thomas.