Court Cases;

OLR Research Report

July 1, 1998 98-R-0829

FROM: George Coppolo, Chief Attorney

RE: Attorney-Client Privilege—Swidler and Berlin Case

You asked for a summary and copy of Swidler and Berlin et al v. United States.


In Swidler and Berlin et al v. United States (NO. 97-1192, June 25, 1998) the United States Supreme Court held, in a six to three decision, that the common law attorney-client privilege survives the client's death and prevents a prosecutor from compelling the attorney from disclosing confidential communications from the client even if such communications are relevant to a criminal proceeding. The case also involved a claim of the work product privilege but the Court did not address this claim.



The matter arose out of an investigation conducted by the Office of the Independent Counsel into whether various individuals made false statements, obstructed justice, or committed other crimes during investigations of the 1993 dismissal of employees from the White House Travel Office. Vincent W. Foster, Jr. was Deputy White House Counsel when the firings occurred. In July, 1993, Foster met with James Hamilton, an attorney at the firm of Swidler and Berlin, to seek legal representation concerning possible congressional or other investigations of the firing. During a two-hour meeting, Hamilton took three pages of handwritten notes. One of the first entries in the notes is the word “privileged.” Nine days later, Foster committed suicide.

In December 1995, a federal grand jury, at the request of the Independent Counsel, issued subpoenas to Hamilton and Swidler and Berlin for Hamilton's handwritten notes of his meeting with Foster. The attorney and his firm filed a motion to quash, arguing that the notes were protected by the attorney client privilege and the work product-privilege.

Lower Courts

The District Court for the District of Columbia, after examining the notes in chambers, concluded they were protected from disclosure by the attorney client privilege and the work product privilege. The Court of Appeals for the DC Circuit reversed (In Re Sealed Case, 124 F.3d 230 (1997)). It concluded the attorney client privilege is not absolute, and instead, a balancing test should apply. It held that there is a posthumous exception to the privilege for communications where the relative importance to particular criminal litigation is substantial.


The Supreme Court held, in a six to three opinion, that the common law attorney-client privilege survives the client's death. It also held there is no posthumous exception to this privilege for communications where relative importance to particular criminal litigation is substantial.

Majority's Reasoning

In reaching its holding, the majority reasoned as follows.

1. The attorney client privilege is one of the oldest recognized privileges for confidential communications.

2. The privilege is intended to encourage full and frank communication between attorneys and their clients and thereby promote broader public interest in the observance of the law and the administration of justice.

3. Only two cases have held that the attorney client privilege should not prevent disclosure of confidential communications where the client has died and the information is relevant to a criminal proceeding (Cohen v. Jenkintown Cab Co., 357 A.2d 689, a 1976 Pennsylvania civil case, and the Appeals Court for the DC Circuit in the case on appeal).

4. All other cases addressing the existence of the privilege after death uniformly presume the privilege survives. Many of these cases expressly held the privilege extends beyond the client's death, even in the criminal context.

5. Numerous courts have found a testamentary exception to the privilege. This exception allows communications from clients to be disclosed after the client's death in litigation between the testator's heirs. The rational for such disclosure is that it furthers the client's intent.

6. While the testamentary exception is that it furthers the client's intent there is no reason to believe that grand jury testimony about confidential communications furthers the client's intent.

7. There are strong reasons for honoring the privilege after the client's death. Knowing that communications will remain confidential even after death encourages the client to communicate fully and frankly with counsel. Clients may be concerned about reputation, civil liability, or possible harm to friends or family. Disclosing communications after the client's death may be as feared as disclosure during the client's lifetime.

8. The privilege serves much broader purposes than the Fifth Amendment's protection against self-incrimination. Clients consult attorneys for a wide variety of reasons, only one of which involves possible criminal liability. Attorneys often act as counselors on personal and family matters. In the course of obtaining the desired advice, clients often reveal confidences about family members or financial problems in order to get sound legal advice. The same is true for owners of small businesses who often consult their attorneys about a variety of problems arising in the course of their businesses. These confidences may not relate in any way to criminal wrongdoing, but nonetheless be matters the clients do not want the attorney to divulge.

9. There is no case authority for the proposition that the privilege applies differently in criminal and civil cases. Further, a client may not know at the time he discloses information to his attorney whether it will later be relevant to a civil or a criminal matter. A posthumous exception in criminal cases appears at odds with the goals of encouraging full and frank communication and of protecting the client's interests.