Dead men's lawyers tell no tales: the attorney-client privilege survives death.

• Jurisdiction: United States
• Author: Kramer, Jon J.
• Date: 22 March 1999

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

1. 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.

2. BACKGROUND

   1. 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.(14) However, this doctrine gradually eroded because "the judicial search for truth could not endure to be obstructed by a voluntary pledge of secrecy, nor was there any moral delinquency or public odium in breaking one's pledge under force of law."(15) In its place arose the modern rationale, which reasons that allowing communication without fear of disclosure encourages clients to be honest with their attorneys.(16) This view was embraced by the Supreme Court in 1981 in Upjohn Co. v. United States, in which the Court found that the privilege was intended to encourage "full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice."(17) Fear of disclosure would discourage clients from communicating openly and honestly with their attorneys.(18) To encourage candor between clients and their counsel, protection of the rights and interests of clients became the guiding principle used to determine the parameters of the attorney-client privilege.(19)

      However, courts have recognized the tension resulting from the privilege's tendency to frustrate the fact-finding process.(20) Implicit in courts' recognition of the privilege has been a consensus that the "social good derived from the proper performance of the function of lawyers acting for their clients ... outweighs[s] the harm that may come from the suppression of evidence.'(21) This statement represents a conclusion by the legal system that the systemic benefit which accrues from enhanced attorney-client communications outweighs the loss of evidence protected by the privilege. This understanding has guided the development of the attorney-client privilege, and courts have only recognized exceptions to the privilege when its application would be at odds with its underlying policy goals.(22)

   2. NOTABLE EXCEPTIONS TO THE ATTORNEY-CLIENT PRIVILEGE

      1. Testamentary Exception

         The testamentary exception allows suspension of the attorney-client privilege after the death of the client, when necessary to resolve disputes between litigants claiming under the decedent's estate.(23) The rationale underlying the exception was first explained in 1 85 1 in Russell v. Jackson.(24) The English court concluded that when all the parties to a dispute "claim under the client," suspending the privilege would prove consistent with a client's interest in the rightful disposition of his estate.(25) In recognizing the testamentary exception, courts have examined the extent to which it furthers the goals the privilege is intended to achieve.(26) By the end of the nineteenth century, the testamentary exception had been embraced by the Supreme Court in Glover v. Patten.(27) In Glover, the daughters of the decedent disagreed on the proper interpretation of their mother's will.(28) The Court found that in a suit between heirs to an estate, communications between the decedent and her attorney would not be privileged since proper disposition of the estate was in the decedent's best interest.(29) It is notable that even as courts began to recognize this exception to the privilege, they seemingly ignored possible cases in which post-death disclosure would not be consistent with clients' intent.(30) Commentators have recognized the potential chilling effect of the exception on communication between attorneys and clients in testamentary matters.(31)

      2. Crime/Fraud Exception

         Attorney-client communications are not privileged if they are intended to assist or promote future or ongoing criminal conduct.(32) This exception is older than the testamentary exception, dating back to English jurisprudence of the eighteenth century.(33) The "exception" designation may be a bit misleading, as there really is no presumption of privilege for this type of communication. The rationale for the "exception" is that attorney-client communications which further criminal or tortious activity do not fit within the scope of the proper attorney-client relationship, and therefore merit no privilege.(34) However, Dean Wigmore has observed the ironic nature of the exception's rationale, since attorney-client discussion of past criminal activity may also serve to further such behavior.(35)

      3. Breach of Duty by Attorney or Client

         The law also recognizes an exception to the attorney-client privilege in cases which involve alleged breeches of duty by clients or attorneys,(36) Issues of breach of duty by attorneys or clients might arise in cases where the attorney is suing to collect a fee,(37) the client is suing the attorney for legal malpractice,(38) or third parties are suing an attorney for his or her involvement in allegedly tortious behavior.(39) Given that clients may themselves waive the privilege at will,(40) the apparent rationale for exceptions in these types of cases is to protect the interests of attorneys.(41)

   3. HISTORY OF THE POSTMORTEM ATTORNEY-CLIENT PRIVILEGE

      Since its beginnings, the presumption has been that the attorney-client privilege continues after death.(42) While the Supreme Court affirmed the testamentary exception in Glover v. Patten, it implied that the privilege generally survives the death of the client.(43) Dean Wigmore explained the continuation of the privilege by noting that "there is no limit of time beyond which the disclosures might not be used to the detriment of the client or his estate."(44)

      While preservation of the privilege after clients' death has been the norm in the majority of jurisdictions,(45) this rule has by no means been unanimous. California, in drafting its code of evidence, made a conscious decision to depart from the common-law tradition, and allow suspension of the privilege after a client's estate has been closed.(46) Rejecting Wigmore's premise that disclosure will always be detrimental to clients' interests, California sought to safeguard the financial interests of the client by extending the privilege for as long as the deceased...