By Susan Schmidt
Washington Post Staff Writer
Saturday, January 17, 1998; Page A04

A lawyer for the late Vincent Foster asked the U.S. Supreme Court yesterday to protect the confidences shared by his despairing client on a Saturday morning nine days before his 1993 suicide.

In a case that could have a lasting impact on lawyer-client relations, the court is being asked to determine whether discussions between a witness in a criminal investigation and his lawyer must remain protected after the witness's death.

As part of his investigation of the firing of seven White House travel office employees, Whitewater independent counsel Kenneth W. Starr has been seeking three handwritten pages of notes that Foster lawyer James Hamilton took during that two-hour meeting on July 11, 1993, in Hamilton's living room. Starr is looking into whether White House officials made false statements or obstructed justice in an investigation of the firings. Foster was involved in the travel office controversy and met with Hamilton to discuss it.

A divided D.C. Court of Appeals ruled last August that Hamilton's notes are no longer absolutely protected under the doctrine of attorney-client privilege. The court said a trial judge can require that the Foster notes be turned over to a grand jury if he examines them and finds they bear on significant areas of the grand jury investigation about which there is a "scarcity of reliable evidence."

In a petition filed with the Supreme Court yesterday, Hamilton stated that as their talk began that day, Foster asked whether the conversation was privileged; Hamilton assured his client it was. Indeed, a lower court judge who inspected the notes found, Hamilton said in court papers, that "one of the first notations on the [notes] is the word: `Privileged,' so it is obvious that . . . Foster . . . viewed the notes of that conversation as privileged."

The 2 to 1 majority in the appeals court ruling said the death of a witness in a criminal probe would make the discovery of relevant information more difficult. Access to confidences shared with a lawyer therefore might be all the more important, and the judges reasoned that while a witness's estate remains subject to civil liability after his or her death, any "criminal liability will have ceased altogether."

But Hamilton argued in his filing to the Supreme Court yesterday that the appeals court ruling denies people "who expect to die soon – whether because of advanced age, illness, suicide, or a dangerous lifestyle – the right to consult attorneys in confidence about criminal matters that threaten friends, associates, family or their own reputations."

A number of legal organizations concerned about guarding attorney-client confidentiality are expected to file briefs in support of Hamilton's petition.

Hamilton wrote that within hours of their talk, Foster penned the anguished note found after his death in which he said, "in obvious reference to himself, that in Washington `ruining people is considered sport.' The note also complains that `the public will never believe the innocence of the Clintons and their loyal staff.' "

In a portion of Hamilton's oral argument last year before the appeals court that was unsealed this week, he told the court: "I am not certain of why Mr. Foster took his own life, even though I think it's because of attacks on his reputation and his fear about this travel office investigation. . . . I am not certain that when he came to see me he was contemplating suicide though I think so. . . . But I am totally certain, I am totally certain of one thing . . . If I had not assured Mr. Foster that our conversation was a privileged conversation, we would not have had that conversation and there would be no notes that are the subject of the situation today."