By Joan Biskupic
Controversy erupted and soon questions were being raised about the role of first lady Hillary Rodham Clinton. Deputy White House counsel Vincent W. Foster Jr. and others in the counsel's office were accused of trying to gin up charges against the dismissed travel office employees. Before long, Foster, a longtime friend of Hillary Clinton, went to see a lawyer, hoping for some advice on how to handle the matter.
On July 20, 1993, nine days after talking to the lawyer, Foster killed himself.
Today at 10 a.m., that lawyer, James Hamilton, will tell the Supreme Court in a special hearing that his conversations with Foster should remain confidential. Backed by lawyer groups and advocates for the ill and elderly, Hamilton will argue that the attorney-client privilege should survive even when the client does not.
But prosecutors from independent counsel Kenneth W. Starr's office will try to convince the justices that the importance of Hamilton's notes to Starr's criminal investigation outweighs any privilege. Since 1996, Starr has been looking into whether any crimes were committed during the travel office firings and aftermath.
"[P]rivileges obstruct the search for truth," Starr wrote in a brief to the court, contending that the attorney-client privilege should dissolve when the client dies.
Since the Supreme Court agreed to take the case, national attention has been focused not only on Starr's effort to obtain the notes but also on the relationship between all clients and their lawyers. The case pits two competing ideals: that people who go to lawyers should be assured secrecy so they feel free to confide fully and obtain the best advice, against prosecutors' claims that they need access to information to get at the truth.
"This is part of a larger picture," said Laura Ariane Miller, a defense attorney in the District. "It is very difficult to get a client to share with you what you really genuinely need to know to defend the client. The more we chip away or qualify the privilege, the more I will not be able to say to someone that I can ensure your confidence."
But the D.C. Circuit Court of Appeals summed up the competing interest when it ruled last August for Starr: "Obviously the death removes the client as a direct source of information" and keeping critical information secret exacts a high cost on the judicial system, particularly if the information cannot be obtained elsewhere.
Today's dispute over whether conversations between an attorney and client should remain confidential forever is one of several "privilege" controversies spurred by the wide-ranging independent counsel probe.
Last week, the justices refused Starr's request that they bypass the normal appeals process to decide whether White House attorneys and Secret Service agents can be forced to testify in the Monica S. Lewinsky investigation. Those cases involve claims of a government attorney-client privilege and a "protective function privilege." The cases will go instead to the D.C. Circuit Court of Appeals for a decision.
While the travel office case was subject to an appeals court decision, it is on a faster track at the Supreme Court than usual. The justices traditionally finish hearing arguments in April, but Starr persuaded them to hear and try to resolve Swidler & Berlin v. United States before recessing this term. That means a ruling is likely by the end of June.
Hamilton, of the law firm of Swidler & Berlin, has argued his own case. During the D.C. Circuit appeals court hearing last year, Hamilton said he was not certain why Foster killed himself or whether he was thinking about suicide when he came to see Hamilton. "But I am totally certain . . . of one thing. . . . If I had not assured Vince Foster that our conversation was a privileged conversation, we would not have had that conversation, and there would have been no notes that are the subject of this situation today."
Hamilton has said all clients, whether or not they may face a criminal proceeding, will not speak candidly if they fear what they say will be revealed after death.
Siding with him is the American Bar Association, which has told the justices: "[I]t is fair to assume that hundreds of thousands if not millions of Americans live today . . . in the expectation that they may soon die. . . . Many of these people undoubtedly have secrets and confidences that, if revealed, would be at the least highly embarrassing to themselves or their friends and loved ones." The ABA cited as example hidden assets or financial transactions and children born out of wedlock. The White House has not taken a position in the case.
The independent counsel's office will be represented by Brett M. Kavanaugh, who successfully argued the case at the D.C. Circuit. He stresses that a dead client cannot be harmed by disclosures and that some exceptions to the privilege already exist. When a will is being contested, for example, the deceased client's lawyer can be forced to testify so that the estate can be properly settled. And Starr's office insists any "marginal chilling" of candid conversations should "not outweigh the grand jury's need for relevant evidence."