By Joan Biskupic
Washington Post Staff Writer
Tuesday, February 24, 1998; Page A02

A request by Whitewater prosecutor Kenneth W. Starr to see notes of conversations between the late White House deputy counsel Vincent W. Foster Jr. and his lawyer has galvanized the legal profession and people who care for the terminally ill.

Several lawyers groups, as well as the National Hospice Organization, have asked the Supreme Court to intervene in a case testing the attorney-client privilege, which keeps communications confidential. They want the justices to rule that the privilege should be respected even after a client has died.

While the issue over the Foster notes is on the margins of the Whitewater investigation, it raises a much larger question: whether an individual can be confident that conversations with a lawyer will not be revealed to family members or business associates, let alone a prosecutor (which the pending case tests), after the individual's death. Starr is seeking the Foster notes as part of his investigation into the 1993 firings at the White House travel office.

"This case is of critical concern to the legal profession as a whole," lawyer Mark I. Levy said yesterday. He added, however, that the case could affect mostly those seeking legal help. "They're the ones who are going to be confronted with the decision on how candid they will be in disclosing potentially embarrassing information," said Levy, who filed a brief on behalf of the hospice group, the National Association of Criminal Defense Lawyers and others.

Similarly, the American Bar Association told the justices the case could affect millions of older or sick Americans who might be afraid to talk to lawyers about hidden assets, out-of-wedlock children or wrongs done to others.

Starr has argued that any need for confidentiality is outweighed by the interest in obtaining relevant evidence for a criminal proceeding.

The attorney-client privilege refers to a client's right to refuse to reveal – and to prevent anyone else from revealing – private communications with a lawyer. The idea is that only by fully disclosing information to a lawyer can a person obtain the best advice and representation.

In investigating the May 1993 travel office firings, Starr subpoenaed notes of a July 1993 meeting between Foster, then deputy White House counsel, and his private lawyer, James Hamilton, of the D.C. firm Swidler & Berlin. Nine days after the meeting, Foster committed suicide. The conversation between the two men regarded the firings and how troubled Foster was about the episode.

A district court judge ruled the notes were protected by the attorney-client privilege. But a panel of the appeals court for the D.C. Circuit ruled that the death of a client changes what would otherwise be an absolute privilege between attorney-client communications. By a 2-to-1 vote, the panel said a lawyer cannot invoke the attorney-client privilege in a criminal matter for a client who is dead.

The Supreme Court is likely to announce in about a month whether it will take up Hamilton's appeal, in Swidler & Berlin v. United States. The outside groups' "friend of the court" filings at this early stage indicate that they think the stakes go far beyond Starr's case. Such attempts to influence the court usually come after the justices have announced they will review a dispute.

Starr wants the lower court decision left intact, noting he has been trying for more than two years to get the Foster notes. "Delay of this magnitude seriously impedes a grand jury investigation," he said. No outside group has filed on behalf of Starr, but some former prosecutors note that the two-judge majority relied on significant legal commentary to rule the privilege does not apply after a client's death.

The majority, Judges Stephen F. Williams and Patricia M. Wald, emphasized the importance of balancing the needs of a criminal investigation against any interest in keeping communications private. The court said preserving the privilege in a criminal matter improperly "obstructs the truth-finding process." Judge David S. Tatel dissented.

The appeals court ruling was based in part on the belief that clients are not so concerned about their reputations after death. That "seems contrary to reason and experience," ABA President Jerome J. Shestack said in a brief, invoking the maxim "a good reputation is more valuable than money."

Ann Morgan Vickery, a lawyer for the National Hospice Organization, said, "When you are trying to finish any unfinished business, it seems to us that one of the things that you should not have to worry about is whether something you tell your lawyer is not going to be confidential after you die."