Swidler & Berlin v. United States
Encyclopedia
Swidler & Berlin v. United States, 524 U.S. 399
(1998), was a case in which the Supreme Court of the United States
held that the death
of an attorney's
client
does not terminate the attorney-client privilege
with respect to records
of confidential communications between the attorney and the client that have been subpoenaed
in a grand jury
proceeding.
The case revolved around efforts of Independent Counsel Kenneth Starr
to gain access to notes taken by deputy White House counsel
Vince Foster
's attorney, James Hamilton, concerning a conversation with Foster regarding the White House travel office controversy
shortly before Foster's July 1993 suicide.
Chief Justice Rehnquist wrote the majority opinion, stating that "The great body of this caselaw supports...the position that the privilege does survive in a case such as the present one." In response to Starr's argument that posthumous exceptions had been granted before, and that interest in whether a crime had been committed was sufficient reason to do so, the opinion noted that exceptions had been granted in such cases where revoking the privilege would further the client's intent, such as in estate disputes among heirs, and that there was no reason to suppose that "grand jury testimony about confidential communications furthers the client’s intent."
Hillary Rodham Clinton
's former law partner, visited James Hamilton at his home to discuss the possibility of retaining Hamilton as counsel to deal with any congressional probe of the travel office firings. Hamilton later testified that Foster asked him if what he told him would be confidential, and Hamilton assured him that it would be. Foster committed suicide nine days later.
Starr subpoenaed the notes from this conversation in December 1995. Hamilton refused to turn them over, and a district court judge upheld his decision. A federal appeals court then ruled 2-1 against Hamilton, saying that posthumous client-attorney privilege needed to be weighed against the importance of having information for a criminal investigation.
The Supreme Court agreed to hear the resulting appeal with unusual quickness.
penned the dissent, agreeing with the Appeals court decision that posthumous exceptions to attorney-client privilege were allowable when there was a "compelling law enforcement need for information".
Starr's decision to subpoenae the notes provoked spirited opposition from lawyer's groups and representatives of the terminally ill, who warned that people would be deterred from speaking candidly with their attorneys if their confidence could be breached after their death. American Bar Association
president Jerome Shestack applauded the Supreme Court decision, saying: "I think it's good for clients. It's important for the legal profession; and I think it's good for the country that people will have confidence in that what they tell their attorney will remain in confidence."
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1998), was a case in which the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
held that the death
Death
Death is the permanent termination of the biological functions that sustain a living organism. Phenomena which commonly bring about death include old age, predation, malnutrition, disease, and accidents or trauma resulting in terminal injury....
of an attorney's
Attorney at law
An attorney at law in the United States is a practitioner in a court of law who is legally qualified to prosecute and defend actions in such court on the retainer of clients. Alternative terms include counselor and lawyer...
client
Customer
A customer is usually used to refer to a current or potential buyer or user of the products of an individual or organization, called the supplier, seller, or vendor. This is typically through purchasing or renting goods or services...
does not terminate the attorney-client privilege
Attorney-client privilege
Attorney–client privilege is a legal concept that protects certain communications between a client and his or her attorney and keeps those communications confidential....
with respect to records
Document
The term document has multiple meanings in ordinary language and in scholarship. WordNet 3.1. lists four meanings :* document, written document, papers...
of confidential communications between the attorney and the client that have been subpoenaed
Subpoena
A subpoena is a writ by a government agency, most often a court, that has authority to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of subpoena:...
in a grand jury
Grand jury
A grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...
proceeding.
The case revolved around efforts of Independent Counsel Kenneth Starr
Kenneth Starr
Kenneth Winston "Ken" Starr is an American lawyer and educational administrator who has also been a federal judge. He is best known for his investigation of figures during the Clinton administration....
to gain access to notes taken by deputy White House counsel
White House Counsel
The White House Counsel is a staff appointee of the President of the United States.-Role:The Counsel's role is to advise the President on all legal issues concerning the President and the White House...
Vince Foster
Vince Foster
Vincent Walker Foster, Jr. was a Deputy White House Counsel during the first few months of President Bill Clinton's administration, and also a law partner and friend of Hillary Rodham Clinton...
's attorney, James Hamilton, concerning a conversation with Foster regarding the White House travel office controversy
White House travel office controversy
The White House travel office controversy, sometimes referred to as Travelgate, was the first major ethics controversy of the Clinton administration. It began in May 1993, when seven employees of the White House Travel Office were fired...
shortly before Foster's July 1993 suicide.
Chief Justice Rehnquist wrote the majority opinion, stating that "The great body of this caselaw supports...the position that the privilege does survive in a case such as the present one." In response to Starr's argument that posthumous exceptions had been granted before, and that interest in whether a crime had been committed was sufficient reason to do so, the opinion noted that exceptions had been granted in such cases where revoking the privilege would further the client's intent, such as in estate disputes among heirs, and that there was no reason to suppose that "grand jury testimony about confidential communications furthers the client’s intent."
Background
On July 11, 1993, Foster, who was First Lady of the United StatesFirst Lady of the United States
First Lady of the United States is the title of the hostess of the White House. Because this position is traditionally filled by the wife of the president of the United States, the title is most often applied to the wife of a sitting president. The current first lady is Michelle Obama.-Current:The...
Hillary Rodham Clinton
Hillary Rodham Clinton
Hillary Diane Rodham Clinton is the 67th United States Secretary of State, serving in the administration of President Barack Obama. She was a United States Senator for New York from 2001 to 2009. As the wife of the 42nd President of the United States, Bill Clinton, she was the First Lady of the...
's former law partner, visited James Hamilton at his home to discuss the possibility of retaining Hamilton as counsel to deal with any congressional probe of the travel office firings. Hamilton later testified that Foster asked him if what he told him would be confidential, and Hamilton assured him that it would be. Foster committed suicide nine days later.
Starr subpoenaed the notes from this conversation in December 1995. Hamilton refused to turn them over, and a district court judge upheld his decision. A federal appeals court then ruled 2-1 against Hamilton, saying that posthumous client-attorney privilege needed to be weighed against the importance of having information for a criminal investigation.
The Supreme Court agreed to hear the resulting appeal with unusual quickness.
Dissent and other opinions
Justice Sandra Day O'ConnorSandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
penned the dissent, agreeing with the Appeals court decision that posthumous exceptions to attorney-client privilege were allowable when there was a "compelling law enforcement need for information".
Starr's decision to subpoenae the notes provoked spirited opposition from lawyer's groups and representatives of the terminally ill, who warned that people would be deterred from speaking candidly with their attorneys if their confidence could be breached after their death. American Bar Association
American Bar Association
The American Bar Association , founded August 21, 1878, is a voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the United States. The ABA's most important stated activities are the setting of academic standards for law schools, and the formulation...
president Jerome Shestack applauded the Supreme Court decision, saying: "I think it's good for clients. It's important for the legal profession; and I think it's good for the country that people will have confidence in that what they tell their attorney will remain in confidence."
See also
- List of United States Supreme Court cases, volume 524
- List of United States Supreme Court cases
- Lists of United States Supreme Court cases by volume
- Attorney-client privilegeAttorney-client privilegeAttorney–client privilege is a legal concept that protects certain communications between a client and his or her attorney and keeps those communications confidential....