§ 38.10 Duration of the Privilege

• Jurisdiction: United States

§ 38.10 Duration of the Privilege

In Swidler & Berlin v. United States,⁹⁹ the Supreme Court held that the federal attorney-client privilege survives the death of the client. The majority justified the result by reference to the purpose of the privilege:

Knowing that communications will remain confidential even after death encourages the client to communicate fully and frankly with counsel. While the fear of disclosure, and the consequent withholding of information from counsel, may be reduced if disclosure is limited to posthumous disclosure in a criminal context, it seems unreasonable to assume that it vanishes altogether. Clients may be concerned about reputation, civil liability, or possible harm to friends or family. Posthumous disclosure of such communications may be as feared as disclosure during the client's lifetime.¹⁰⁰

In addition, the Court noted that "the loss of evidence admittedly caused by the privilege is justified in part by the fact that without the privilege, the client may not have made such communications in the first place."¹⁰¹ The Court also rejected a proposed exception for criminal cases because "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."¹⁰² Swidler & Berlin represents the majority view. State practice varies. Some have limited the scope of the privilege in this context.¹⁰³

Moreover, the circumstances under which a representative of the deceased client may waive the privilege raise additional issues.¹⁰⁴

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Notes:

^[99] 524 U.S. 399 (1998).

^[100] Id. at 407.

^[101] Id. at 408 (citations omitted).

^[102] Id. at 409.

^[103] See In re Miller, 584 S.E.2d 772, 789 (N.C. 2003) (communications between attorney and client regarding criminal activity of a third party, which do not tend to harm the interests of the client; "[W]hen a trial court, after conducting an in camera review . . . , determines that some or all of the communications between a client and an attorney do not relate to a matter that affected the client at the time the statements were made, about which the attorney was professionally consulted . . . , such communications are not privileged and may be disclosed.").

^[104] See United States v. Yielding, 657 F.3d 688, 707 (8th Cir. 2011) ("A personal representative of a deceased client generally may waive the client's attorney-client privilege, however, only when the waiver is in the interest of the client's estate and would not...