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James Hamilton, lawyer for the late White House counsel Vincent Foster, outside the Supreme Court Monday. (Reuters)

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Related Links
_ Do Legal Secrets Outlive Clients? (Washington Post, June 8)

_ Full Text of Appeals Court Decision

_ Supreme Court Report: Background on the Case

_ Whitewater Special Report: Key Stories About Travel Office Firings

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Foster Lawyer: Notes Should Be Secret

By Joan Biskupic and Susan Schmidt
Washington Post Staff Writers
Tuesday, June 9, 1998: Page A07

Taking on a case that could affect anyone who seeks a lawyer's advice, the Supreme Court expressed reservations yesterday over the implications of declaring that attorneys could be forced to reveal a client's secrets after the client dies.

In an especially spirited session before a capacity crowd, several justices appeared reluctant to interfere with a person's ability to talk openly with a lawyer without worrying that their conversations might someday be disclosed. While the justices do not fully tip their hand during oral arguments, they plainly were more preoccupied with how to protect the confidences of individuals than how to ensure prosecutors have full access to information as part of a criminal investigation.

The case has drawn national attention, in part because it stems from independent counsel Kenneth W. Starr's wide-ranging Whitewater investigation, including conversations involving the late deputy White House counsel Vincent W. Foster. But a high court ruling in the case could also change whether people across the nation are candid with their attorneys. For that reason, groups representing both lawyers and the terminally ill have taken an interest in the case, saying that if the attorney-client privilege dissolves at death, people will be afraid to tell their lawyers potentially embarrassing secrets about their lives or those of family members.

Not all the justices were convinced of that argument. Justice Anthony M. Kennedy was quick to complain that some of the outside groups had sounded alarms that might not be warranted. But several others were clearly worried about doing anything that would damage the intimate relationships that attorneys develop with clients. And yesterday's case offered a reminder that, behind their black robes, the justices themselves are all lawyers.

A client "must feel free to tell a lawyer the truth and the whole truth," Chief Justice William H. Rehnquist said at one point.

Among those who appeared most skeptical of Starr's position yesterday were Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. Ginsburg noted that Starr "never could have gotten [the notes] when [Foster] was alive" because they would have been covered by the attorney-client privilege.

Starr is trying to obtain notes of a conversation Foster had with his lawyer, James Hamilton, on July 11, 1993, nine days before Foster killed himself. Starr has subpoenaed the notes in his investigation of possible criminal activities during the 1993 firing of seven career employees in the White House travel office. As part of that probe, Starr is trying to determine whether first lady Hillary Rodham Clinton, a former law partner of Foster, lied in the aftermath of the firings, and whether Foster or others tried to gin up charges against the fired employees as a pretense for getting rid of them.

A federal appeals court sided with Starr and ruled that the attorney-client privilege can be broken when the information sought is important for a criminal case and cannot be obtained elsewhere. As the Supreme Court took up the case yesterday, it drew an all-star cast of prominent lawyers involved in related White House controversies, including Jacob A. Stein, Monica S. Lewinsky's new lawyer; White House counsel Charles F.C. Ruff; Nicole K. Seligman and David E. Kendall, private lawyers for Clinton; and W. Neil Eggleston, the attorney hired to pursue the president's privilege claims in another part of the Whitewater investigation.

Hamilton took the unusual step of representing himself in his appeal before the high court. He told the justices that Foster had come to his home on Sunday, July 11, 1993, and spent about two hours talking, during which time Hamilton said he took three pages of notes. He said Foster asked if the conversation would be confidential, and Hamilton, "without hesitation," said it would be.

In arguing his case, Hamilton emphasized that any rule breaching the attorney-client privilege, even in exceptional criminal case circumstances, will intimidate clients in all cases. He gave an example of a dying father who might be worried about speaking with a lawyer about his son's problems with illegal drugs, for fear he would someday subject his son to prosecution.

But Kennedy questioned whether any dissolving of attorney-client privilege would really have the chilling effect that Hamilton contended. "It seems to me it is not the sweeping change . . . you indicate," he told Hamilton. Kennedy noted that under California law, the privilege ends after a client dies and his estate is closed. "Experience has shown that this is not a problem," Kennedy said.

Kennedy and Justice Antonin Scalia appeared most troubled by Hamilton's contention that any loophole would restrain conversations. "Courts like to get to the truth," Scalia said.

Starr has argued that the attorney-client privilege always ends when a client dies, a position that goes further than the D.C. Circuit's ruling that a court should weigh the needs of a criminal investigation against the deceased's confidentiality.

Brett M. Kavanaugh, who represented Starr's office yesterday, emphasized that the only way to serve justice is to allow critical information into court.

Kavanaugh also noted that exceptions to the privilege already exist. For example, a deceased client's lawyer can be forced to testify so that a will can be interpreted and an estate properly settled. But Souter said that exception does not necessarily translate to other contexts. A ruling in the case of Swidler & Berlin v. United States is likely to be handed down by the end of the month, when the justices recess for the summer.

© Copyright 1998 The Washington Post Company

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