Despite what you may have heard, the D.C. Circuit's recent opinion concerning notes taken by Vincent Foster Jr.'s lawyer was not about the survivability of the attorney-client privilege after the death of the client. That principle was acknowledged by the court and has been the rule in all state jurisdictions for the past 200 years.

Instead, the case presented a straightforward issue of whether the privilege should be modified by a "good cause," "necessity," or "balancing" exception. In holding that it should be, the D.C. Circuit challenged a time-honored aspect of the privilege that could ultimately diminish its effectiveness in encouraging client candor. In re Sealed Case, 124 F.3d 230 (1997), petition for cert. filed sub nom. Swidler & Berlin v. United States (No. 97-1192).

In the grand jury investigation of the firing of White House travel office employees, the independent counsel, Kenneth Starr, obtained grand jury subpoenas for notes of a conversation between White House Deputy Counsel Foster and his private attorney. The need for these notes was prompted by the suicide of Foster, who possessed relevant information about the firings.

While acknowledging that no federal cases have recognized a good cause" exception to the attorney-client privilege, the D.C. Circuit cited a number of secondary authorities who have questioned the logic of maintaining the privilege after the client's death. The court concluded that the purpose of the privilege -- encouraging candid communications between the attorney and client -- would not be seriously jeopardized if the confidentiality of those communications were breached after the client's death.

The court's reasoning was that a client has little concern about his posthumous reputation, and no concern about his posthumous criminal liability, and so will not be discouraged from being candid with his lawyer even if he believes that his confidential communications may be disclosed after his death in response to a criminal investigation: "To the extent, then, that any post-death restriction of the privilege can be confined to the realm of criminal litigation, we should expect the restrictions' chilling effect to fall somewhere between modest and nil." Therefore when balanced against the need for the information due to the client's unavailability, the court concluded that the privilege should yield.

However, the court reject[ed] a general balancing test in all but this narrow circumstance and went on to note the limits of its holding: "We thus embrace the arguments for such an exception only within the discrete zone of criminal litigation. While we believe that a case-by-case balancing is appropriate within that realm, we see no basis for any further exception (apart of course from the long-established exception for litigation among those claiming under the decedent)."

The "good cause" exception, also known as the "balancing of interests" exception, balances the need for the privileged information against the benefit derived from the privilege's suppression of that information. Outside the hybrid and complex world of the corporate attorney-client privilege, where a good cause exception has been recognized for shareholders who seek access to corporate communications, the Sealed Case decision was the first by a federal court to recognize the exception in any context vis-a-vis an individual. Although most state jurisdictions have never addressed the question, the exception for good cause, necessity, unavailability, or balancing of interests has been rejected in 15 states because it is perceived as destroying the predictability of the privilege protection, thereby destroying its power to encourage candid communications from the client. These states have concluded that if the client cannot know with certainty that his communications cannot harm him, he will not communicate openly with his lawyer.

Some variation of the 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 states have employed it (outside of the corporate context in actions involving shareholders) to pierce the privilege. Most of these cases, however, have involved criminal cases in which the defendant demonstrated a compelling need in the preservation of his rights of confrontation and to present evidence in his defense.

In Pennsylvania, the privilege can be overridden for "good cause"--defined by whether the interests of justice may be frustrated by the exercise of the privilege, Brennan v. Brennan, 281 Pa. Super. 362, 422 A.2d 510, 514-15 (1980) -- but only if "the client's rights or interests cannot be adversely affected thereby." Cohen v. Jenkintown Cab Co., 238 Pa. Super. 456, 357 A.2d 689, 692 (1976). In this regard, the Pennsylvania courts have considered five factors in determining whether the client's interests could be affected by disclosure: (1) whether the client is alive or dead at the time disclosure is sought; (2) whether the client's estate could become civilly or criminally liable because of the disclosure; (3) whether the testimony contains "scandalous or impertinent matter" that could "blacken the memory" of the client; (4) whether the communications have already been revealed to the public; and (5) the need for disclosure vs. the need to preserve candor between attorneys and their clients.

IMPORTANT ISSUES IGNORED

In Sealed Case, the D.C. Circuit stated that the "exception should apply only to communications whose relative importance is substantial. It went on to say that "the statement must bear on a significant aspect of the crimes at issue, and an aspect as to which there is a scarcity of reliable evidence." But the court's analysis omitted consideration of several critical issues that complicate the use of a balancing test, including several suggested by the Pennsylvania criteria.

The first is whether the client's statements have to be admissible under an exception to the hearsay rule. This, of course, is not an issue in grand juries where the rules of evidence are not followed, but it would be a significant hurdle in the subsequent criminal trial. If the exception is limited to otherwise admissible evidence, it seems hardly worth the recognition since the Supreme Court has severely restricted admissibility under the most likely hearsay exception, declarations against interest.

In Williamson v. United States, 114 S. Ct. 2431 (1994), the Supreme Court permitted the use of only those portions of such statements that are directly against the interests of the declarant It held inadmissible those portions that name other individuals because those portions are not against the declarant's interests. Consequently, the deceased client's statements to his attorney incriminating others could not be used in their criminal trials. Therefore a requirement that the sought-after communications be admissible evidence would virtually guarantee that all balances would be against disclosure.

The second issue ignored in the Foster case is the consequential applying the exception. The court embraced the exception "only within the discrete zone of criminal litigation." Unaddressed in this discussion, however, was the crucial question of whether the privilege protection would survive, and therefore suppress, the disclosed communications in other proceedings after disclosures were in the criminal litigation.

For example, if the independent counsel were success piercing the privilege-achieving disclosure of confidential communications for the grand jury investigation -- would the privilege continue to preclude their use in related civil actions against Foster's estate? Since the use of the discrete criminal exceptions will have destroyed all confidentiality for the documents disclosed to grand juries or at trial -- the foundation for the privilege protection -- what premise could the court continue to recognize privilege? If, on the other hand, the destruction of this confidentiality destroys the privilege protection, the client's estate could be depleted as a result of the civil liability proven through his admissions to his attorney.

The Supreme Court should grant cert in this case and reject good cause exception. The D.C. Circuit is convinced that disclosures after death will cause only minimal increases in the uncertainty of the privilege's protection. That conclusion is accurate, however, only if conditions are placed on the exception, and on the u the evidence discovered through it, that make the exception virtually worthless or change the fundamental nature of the attorney-client privilege itself..

Despite claims by the D.C. Circuit to the contrary, it must be understood that once recognized, there is nothing about the concept of "good cause" that limits it to disclosures after death.

This is a Pandora's box that should not be opened. Our forefathers had it right when they made the privilege absolute, even after the death of the client. Nothing has changed, and neither should the rule.