Shakespeare warned us, "The evil that men do lives after them/The good is oft interred with their bones." What he did not take into account is that the lawyers that men hire often live after them too.

Now there may be a way by which counsel can help tip the historical balance in favor of their once badly behaved, since departed clients. And the only interests that suffer are those of history and the attorney-client privilege.

Late last year, The New York Times reported that Richard Nixon's former criminal defense attorney, Herbert Miller, had disclosed the contents of certain confidential communications from Nixon, including the information that "Nixon was opposed to accepting the pardon. He felt it would imply some kind of guilt."

Apparently recognizing that this disclosure may have violated the former president's attorney-client privilege, Miller announced that the disclosure had been "authorized" by Nixon's daughter Julie Nixon Eisenhower. What Miller did not explain is why he believed that Eisenhower had standing to waive her father's privilege claim.

Normally, an individual's attorney-client privilege is controlled exclusively by that individual. When he dies, his attorney is forever bound to preserve his confidences, regardless of the desires of his heirs.

The fact that the privilege survives death was reaffirmed by the Supreme Court in 1998 in Swidler & Berlin v. United States. The Court held that James Hamilton, a partner in Swidler & Berlin who had represented the late White House Counsel Vincent Foster, could resist disclosures in response to a grand jury subpoena in Kenneth Starr's independent counsel investigation.

The one exception to the privilege's survival after death has been in will contests. If the proper interpretation of the client's written will requires that his confidences be disclosed, it is presumed that the client would have waived the privilege protection to ensure that his true intentions were carried out.

But this is the only time in which the privilege is waived after death. The attorney-client privilege is not passed down to one's heirs, to be wielded as they think fit.

Inappropriate Conduct

It is possible that Nixon specifically gave his daughter the power to control his privilege claims. It is also possible that Nixon specifically gave his former lawyer the authority to speak when it might serve to enhance Nixon's reputation (although that would be inconsistent with Miller's own explanation). Otherwise, Miller's conduct was inappropriate, and perhaps even a violation of the Code of Professional Responsibility.

Luckily, Miller's disclosures appear to be of little legal consequence. They were not made in the midst of litigation and therefore did not give an adversarial advantage to Nixon's estate or place an opponent at a disadvantage. In addition, the disclosures did not injure a third party, thereby giving rise to a cause of action, and perhaps a fiduciary duty on the part of the attorney to investigate the truth of the disclosures.

Instead, this relatively innocuous information about Nixon will probably be treated like the disclosures that were made in Alan Dershowitz's book Reversal of Fortune about his successful defense of Claus von Bulow. Professor Dershowitz's disclosures had been made with the consent of his former client.

In the much cited case of von Bulow v. von Bulow (1987), the U.S. Court of Appeals for the 2nd Circuit held that von Bulow's waiver was limited to the communications already revealed. Von Bulow's stepchildren, who were neither implicated nor otherwise affected by the disclosures, could not compel further revelations from Dershowitz on the basis that the book disclosures had entirely waived the privilege. If further disclosures were sought from Miller, this same principle of "what you see is what you get" would likely control.

What this means is that Nixon's heirs and friends are free to urge his former attorney to make selective disclosures in an attempt to salvage the late president's name. And that's not wise.

An Ethics Challenge

An attorney making favorable disclosures about a client after the client's death creates a challenge for legal ethics. How should we deal with a lawyer who arguably aids his former client - although not very much since said client is dead - but thereby violates the client's confidences?

In Swidler & Berlin, the Supreme Court held that client confidences must be maintained after the client's death because only with this assurance of continued secrecy would the client be open and candid with his attorney in life. Even after the client's death, the attorney has a legal and ethical obligation under the Code of Professional Responsibility to maintain confidentiality. None of us has standing to force Miller to answer the question he refused to address at the Duquesne University Law School forum: "Did Nixon ever acknowledge his guilt in Watergate?"
 

Unlike Nixon's daughters, the public also lacks the power to persuade Miller to disclose more of his former client's confidences so that the historical record fairly reflects all the facts relating to Nixon's legal difficulties. If an attorney chooses to selectively reveal confidences that paint his former client in a more favorable light, there is no legal means through which more complete disclosures - the whole truth rather than the partial truth - can be compelled. Indeed, there is little, other than ethical inquiries and bar sanctions, to stop a lawyer from becoming his client's post-mortem spin-doctor.

Likewise, other than the ethical obligation under the Code of Professional Responsibility, there is no enforceable legal obligation to give complete or balanced recitations of the client's history because the only person with absolute standing to object is dead.

So long as the attorney only releases favorable information, the client's estate is highly unlikely to be injured. Thus, the client's descendants are also not injured. This means that the only living people who might conceivably have a cause of action against the lawyer will have no motivation to correct the record. As long as no one else is injured, no one else has any actionable interests at stake.

That doesn't mean that no one else has any interests at stake. The public, including the press, has an interest in the whole truth - particularly as it involves figures of historical importance - and is harmed by one-sided and incomplete disclosures. Of course, that is not a legally cognizable interest. Courts will not listen to pleas to force lawyers to tell the full story for the sake of history.

It is also unlikely that bar associations will exercise their power to sanction lawyers who violate the confidences of former clients. Again, no cognizable interests will be complaining.

And it would not be fair to punish Herbert Miller for making selective disclosures after his client's death, while countenancing those same disclosures in the von Bulow matter because they were done with the client's permission.

Yet if selective disclosures are wrong, they should not be tolerated. Our profession should jealously guard the viability of the privilege upon which our professional services depend.

The attorney-client privilege represents a balancing of the community’s need to know the truth with the individual’s right to protect himself. Should the attorney – or even the client – be allowed to turn the privilege into a weapon long after any courtroom battles have ended? Should the lawyer become the instrument through which historical figures can posthumously rehabilitate their public image?