Dead Men's Lawyers Tell No Tales: The Attorney-Client Privilege Survives Death

By Kramer, Jon J. | Journal of Criminal Law and Criminology, Spring 1999 | Go to article overview

Dead Men's Lawyers Tell No Tales: The Attorney-Client Privilege Survives Death


Kramer, Jon J., Journal of Criminal Law and Criminology


Swidler & Berlin v. United States, 118 S. Ct. 2081 (1998)

I. INTRODUCTION

In Swidler & Berlin v. United States,(1) the United States Supreme Court held that there is no posthumous exception to the attorney-client privilege for communications with substantial impact on criminal proceedings. In reaching its principal holding, the Court explicitly rejected the District of Columbia Circuit's balancing test.(2) The Court of Appeals had recommended that judges balance clients' interests in posthumous confidentiality against the need for evidence in criminal proceedings to determine whether communications between attorneys and clients may be introduced as evidence after clients have died.(3)

The Supreme Court reasoned that preservation of the privilege after death would be consistent with clients' best interests. Survival of the privilege would therefore encourage the kind of open and frank communication between client and counsel which the privilege was intended to achieve.(4) Citing deceased clients' concerns about reputation, civil liability, and potential harm to friends and family,(5) the Court noted that posthumous disclosure of confidential communications even in a limited criminal context might result in less communication between attorneys and clients.(6) Finding that earlier exceptions to the attorney-client privilege did not justify a posthumous exception in this case, the Supreme Court rejected use of a balancing test to determine application of the privilege because such a test might result in disclosure of information inconsistent with clients' best interests.(7) However, the Court noted that its decision did not reach the question of whether the posthumous attorney-client privilege must be preserved in cases where criminal defendants' constitutional rights might be implicated.(8)

This Note argues that the Supreme Court's decision to preserve the attorney-client privilege in Swidler & Berlin v. United States is correct because its focus on clients' interests is consistent with the rationale underlying the development of the privilege. This Note begins by tracing the history of the attorneyclient privilege, explaining how and why exceptions to the privilege developed over time. This Note then examines the reasoning of both the majority and minority opinions in the case. Next, this Note argues that the Supreme Court's failure to recognize an exception to the posthumous privilege for testimony having a substantial impact on criminal proceedings is consistent with earlier courts' attention to clients' interests when determining the contours of the privilege. Finally, this Note concludes that the Court's refusal to address the potential conflict between the posthumous attorney-client privilege and defendants' constitutional rights should not be interpreted as a sign of the Court's willingness to recognize an additional exception to the posthumous privilege.

II. BACKGROUND

A. HISTORY OF THE ATTORNEY-CLIENT PRIVILEGE

The attorney-client privilege dates back to the English Common Law of the late sixteenth century making it the first privilege the law recognized for confidential communication.(9) The Supreme Court of the United States embraced the privilege early in its tenure, finding that "It]he general rule is not disputed, that confidential communications between client and attorney, are not to be revealed at any time."(10) Though legal historians have not questioned the early existence of the privilege, the reasons underlying the privilege's development have been the subject of some debate.(11) This controversy is significant since the contours of the attorney-client privilege are largely determined by the importance of the policy goals which underlie it, and the extent to which the privilege is viewed to further those ends.(12)

The original rationale for the privilege concerned the protection of attorneys' honor as gentlemen.(13) The conventions of the time considered disclosure of confidential communications dishonorable. …

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