In the final week of the term, the Supreme Court handed down its response to Independent Counsel Kenneth Starr's far-reaching assault on the attorney-client privilege: The client may die. but the privilege lives on. As urged by a mountain of amicus curiae briefs filed in Swidler & Berlin v. United States, 66 U.S.L.W. 4538 (June 25, 1998), the Court held that a client may speak with his or her attorney without fear that after the client's death the lawyer might be compelled to testify about and disgorge notes of those conversations.

After the White House in 1993 dismissed employees of its Travel Office various criminal investigations ensued. Seeking outside legal representation for these investigations, Deputy White House Counsel Foster Jr. met with James Hamilton (a partner at Swidler & Berlin). During their two-hour consultation, Hamilton took three pages of handwritten notes.

Because of Foster's subsequent suicide, his crucial testimony was not available to the grand jury investigation conducted by Starr. So the special prosecutor went after the next best evidence: Hamilton's handwritten notes.

One obstacle stood between Starr and the lawyer's notes: the attorney-client privilege. For more than 200 years, the privilege has made a client's statements absolutely immune from discovery, even after the client's death. On this authority, Hamilton refused to disclose his notes in response to Starr's subpoena, and a federal district court sustained his privilege.

On appeal to the U.S. Court of Appeals for the D.C. Circuit Starr found a sympathetic ear. See In re Sealed Case, 124 F.3d 230 (D.C. Cir. 1997). While that court acknowledged that the attorney-client privilege generally needs to be absolute and generally should survive the death of a client, it was not convinced that the privilege's protection had to be available after the client's death.

The appeals court determined that a narrowly drawn exception would not diminish the privilege's effectiveness in encouraging attorney-client communications. Creating such an exception for instances where the information sought (1) is of substantial importance to a criminal investigation and (2) other sources are unavailable, the court ordered Hamilton to produce his notes.

STANDING BY TRADITION

On Swidler & Berlin's appeal to the Supreme Court, six justices stood by the common law. Interpreting the privilege "in the light of reason and experience," the Court found that no justification had been offered, much less proven, for departing from a universally established rule considered fundamental to both the attorney-client relationship and the adversarial system of justice that it serves. All of Starr's arguments for ending the life span of the client's privilege at the end of the client's own life received a summary burial from the Court.

The Court began by rejecting Starr's attempts to draw an analogy between the breach of privilege he was advocating for criminal cases and the established exception that allows an attorney to reveal client statements when there is a dispute over the terms of the client's will. The independent counsel argued that this so-called testamentary exception represents a policy judgment that the interests of the estate outweigh the posthumous interests of the client in confidentiality.

Quite to the contrary, the Court found that the testamentary exception assumes that the client would want the privilege breached if necessary to give effect to his or her testamentary wishes. No interests of the client are balanced away, the Court noted, by the testamentary exception.

Starr further argued that his proposed exception would have little, if any, effect on a client's willingness to confide in an attorney. He asserted that fear of apprehension for subsequent perjury is the principal reason clients are concerned about the subsequent disclosure of their communications. Because that fear dies with the client, Starr claimed that terminating the privilege protection would have little, if any, effect on the client's willingness to be open with his or her attorney.

CLIENT CONCERNS

To the contrary-again-the Court found that clients may be concerned not only about perjury prosecutions, but also about reputation, civil liability, and possible harm to family and friends. "Posthumous disclosure of such communications," the majority observed, "may be as feared as disclosure during the client's lifetime." The justices noted that Starr's argument in this regard also incorrectly assumed "that the privilege is analogous to the Fifth Amendment's protection against self-incrimination." As their opinion explained:

Consequently, the Court found, "[w]ithout assurance of the privilege's posthumous application, the client may very well not have made disclosures to his attorney at all, so the loss of evidence is more apparent than real. "This was particularly true of Vince Foster, who may well have been contemplating suicide when he spoke with Hamilton, and prefaced his communications with an explicit inquiry about the confidentiality of his statements.

DIFFERENTIAL TREATMENT

The Court summarily rejected the argument that the D.C. Circuit's limited exception to the privilege in criminal cases where the value the information is substantial would have minimal impact effectiveness of the privilege. Declining to apply the privilege differently in criminal and civil cases, the Court found that the any after-the-fact balancing of the importance of the information against interests "introduces substantial uncertainty into the privilege's application."

It is true that the privilege contains exceptions for crime/fraud (when the client abuses the attorney-client relationship) and testimentary statements (when there is a dispute over the client's will). However, as the Supreme Court noted, these exceptions, like the "balancing test" employed by the D.C. Circuit, are "consistent with the purposes of the privilege" rather than "at odds with the goal of encouraging full and frank communications and protecting the client's interests."

Justice Sandra Day O'Connor dissented, joined by Justices Antonin Scalia and Clarence Thomas. Her opinion follows the facially appealing reasoning of the D.C. Circuit's decision: To protect innocent criminal defendants and meet compelling enforcement needs for information when testimony is not available, fairness and truth outweigh the justification for the privilege. Like the D.C. Circuit decision, however, O'Connor's did not explore the full range of the considerations that should have been factored into the interests that she balanced. The issue of qualifying the privilege protection is far more complex than she or the D.C. Circuit acknowledged.

The most troublesome aspect of the D.C. Circuit's acceptance of a "balancing test" was its signal that the court was willing to weaken the privilege protection by application of factors not in the client's control and are totally unpredictable. And although the D.C. Circuit limited its holding in this to posthumous disclosures, there was nothing inherent in the balancing concept that would limit it to that circumstance future. Once opened, this Pandora's box could release a myriad of unacknowledged evils.

HEARSAY PROBLEMS

The first issue left unsettled by the balancing test is the inadmissibility of the evidence that it would introduce. For instance, if Foster had recounted -- and Hamilton had recorded -- events in the White House that he had observed, Foster's statements likely would not be admissible in court to prove the truth of what he described because they would constitute hearsay. While Hamilton's note could be used before the grand jury (where hearsay is freely admitted might have no substantive value beyond that forum. Is the uncertainty that Starr's proposal injects into the attorney-client privilege justifiable solely on the basis that the statements (once stripped of the privilege) could produce an investigative lead?

Yet if a theory could be devised to admit the hearsay evidence trial -- for example, that it might constitute a declaration against interest under Federal Rule of Evidence 804(b)(3), or might satisfy the residual exception in Rule 807 (providing for the admissibility of otherwise inadmissible hearsay that has demonstrated trustworthiness) -- this would create a far more complex problem. Once the client communication has been used at a public criminal trial (in contrast to a secret grand jury proceeding) all confidentiality has been destroyed. This public exposure would make the attorney-client communications available to and usable by any private litigant.

If, for example, the content of Vince Foster's statements revealed his culpability in tortious actions against third parties, his estate could be exposed to suits that would deplete it. If estate planning were the original purpose of Foster's consultation with Hamilton, the disclosure and use of his statements would completely defeat his purpose. This possibility makes the harm inflicted by Starr's proposal on the attorney-client relationship far greater than he, the D.C. Circuit, or the dissenting justices acknowledged.

Nor could these problems be solved easily. If, in an effort to shift the balance and limit the costs of this disclosure to the client and his estate, courts were to limit the use of the statements to the criminal trials prompting their disclosure, the remedy would fundamentally change the nature of the privilege: Confidentiality would no longer be its defining characteristic. In addition, the courts would be recognizing a form of "limited waiver" -- allowing some to make use of the communications while denying the same right to others -- which has been consistently rejected in both state and federal courts.

CORPORATE FAVORITES

Moreover, had the Supreme Court actually struck a balance consistent with the D.C. Circuit's decision, it would have imposed a limit on an individual's privilege that generally would not apply to corporate clients. Entities such as corporations and government agencies theoretically have legal lives of unlimited duration. Even when corporations cease to exist, they often do not die -- they are acquired and absorbed into other corporate entities that acquire the absorbed corporations' privilege claims. This is incongruous, and perhaps even perverse because those entities have the least demonstrated need for the privilege.

The attorney -client privilege encourages more open communications between a client and an attorney by protecting those clients from being harmed by their own statements. The privilege, however, cannot serve that purpose with corporate entities because they are legal fictions that cannot communicate. Nevertheless, the law cloaks those entities with the privilege, and, paradoxically, denies the protection to the employees who personify and speak for the entities. (What an employee says to government or corporate lawyers is protected by a privilege, but the government or corporation, not the individual, controls the assertions of that privilege. Consequently, employees speak for the benefit of the entity, but at their own personal risk. A corporation, for example, is free to waive a privilege claim and release the confidential communications and even criminal confessions of its employees.) Therefore, in this hybrid application of the attorney-client privilege, the D.C. Circuit's balancing of interests would give a more lasting protection in the least deserving context.

DOUBLE TROUBLE

An additional problem with the D.C. Circuit's decision--one that could have made Starr's entire effort an academic exercise -- may have been avoided by the Supreme Court's disposition of the Foster matter. When Foster consulted with Hamilton for the purpose of obtaining legal assistance in the Travel Office matter, it appears that he may have gone to Hamilton in two different capacities: as deputy White House counsel seeking assistance for the White House, and as an individual seeking personal legal assistance from Hamilton concerning his potential criminal or civil liability. The justices' opinions dispose of Foster's claim of privilege only in the second capacity.

If Foster's client had been the White House, even if Foster's death terminated his privilege, it would not have affected the White House's privilege protection. Consequently, had Starr succeeded, the White House might have intervened to assert its own privilege. Even if Foster had consulted Hamilton only to obtain advice for himself (the second capacity), the White House could still intervene and assert a privilege claim if Foster's communications with Hamilton revealed prior privileged communications of White House employees with Foster.

Foster's communications as a White House lawyer would involve a privilege within a privilege -- White House employees who spoke with Foster (privileged under the White House's privilege), who in turn, related those White House communications to Hamilton (privileged under Foster's privilege). Therefore, since only one client is dead, only one privilege could have been balanced away. Of course, this would have been an ironic comeuppance for the prosecutor responsible for the disparity in treatment between individuals and entities.

Outside of the hybrid, complex world of the corporate attorney-client privilege, where a "good cause" exception generally has been recognized for shareholders who seek access to corporate communications (see Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970, cert. denied, 401 U.S. 974 (1971)), the D.C. Circuit was the first federal decision to recognize such an exception in any context vis-a-vis an individual. In the state courts, although most jurisdictions have never addressed the question, the "balancing of interests" exception to the privilege (also referred to variously as the "good cause," "necessity," and "unavailability" exception) has been rejected in 16 states (including Maryland and Virginia).

Some variation of a "good cause" exception has been embraced in 10 states. Four have indicated a willingness to pierce the privilege in an appropriate case, without having found one. Six have employed it, outside of the corporate context in actions involving shareholders, to pierce the privilege. Almost all of these have involved criminal cases where the defendant demonstrated a compelling need in the preservation of his rights of confrontation and to present evidence in his defense.

Two notable exceptions have been Connecticut and Pennsylvania. And even in those jurisdictions, the exception is defined so narrowly it has seldom, if ever, been found applicable. See Bersani v. Bersani, 41 Conn. Supp. 252,565 A.2d 1368 (1989); Okum v. Commonwealth Unemployment Compensation Board of Review, 77 Pa. Commw. 386, 465 A.2d 1324 (1983); Commonwealth v. Scott, 503 Pa. 624, 470 A.2d 91 (1983); In re County Investigating Grand Jury, 3 Phila. 613, 1980 Phila. Cty. Rptr. LEXIS 85 (1980); Cohen v. Jenkintown Cab Co., 238 Pa. Super. 456, 357 A.2d 689 (1976).

The Vince Foster case did not involve the compelling circumstance of an innocent individual being prosecuted for a criminal act for which a deceased client had confessed. The Court specifically acknowledged the need demonstrated in such a situation, but declined to address that possibility in a case that did not present such circumstances. When that case arises, it would be preferable for the court to interpret the criminal defendant's Sixth Amendment right to present evidence in his favor as pre-empting the privilege rather than sanctioning a nebulous "balancing test" that completely destroys the privilege's predictability.

UNWRITTEN RULES

The independent counsel's assault on the attorney-client privilege was facilitated by the absence of any codified evidence rules on privilege in the Federal Rules of Evidence. Despite the codification of rules on all other evidentiary subjects, Rule 501 of the Federal Rules of Evidence leaves privilege law entirely to judicial discretion based on common law principles. Rule 501 provides that all privileges are to be recognized and interpreted by the courts of the United States "in the light of reason and experience."

This rule encourages the kind of attack represented by the Foster case. Litigants with unlimited time, too much money, and limited agendas can pursue destructive "scorched earth" discovery tactics. Challenges to privileges may be forestalled in the future only through the enactment of specific privilege rules.

While the responsibility to write such rules should be assumed by the Federal Rules of Evidence Advisory Committee, this seems unlikely to occur. The committee has consistently perceived its stewardship responsibility as being limited to maintaining the existing rules through minor changes; it has declined to improve the rules through broader and more sweeping evaluations, reassessments, and enactments.

As an alternative, Congress should consider re-establishing the Advisory Committee that promulgated the evidence code 25 years ago so that legislators and committee members might jointly engage in a general reassessment of the Rules of Evidence. An open debate within the bar, at the very least, would be educational.

In the broader community, such a freewheeling discussion would provide an opportunity to address difficult evidentiary questions in a less politically charged environment. In the area of privilege, these questions would include appropriate limitations on the attorney-client privilege, the recognition of an accountant-client privilege (currently proposed in the IRS reform legislation), and the question of a parent/child privilege, which was bandied about when Monica Lewinsky's mother was compelled to testify against her daughter.

The attorney-client privilege dodged a bullet in the Vince Foster case. Such an important and established institution should not be exposed again to the whims of adversarial litigants.