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Independent counsel Kenneth Starr
Independent counsel Kenneth W. Starr (The Post)


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Court to Hear Foster Notes Argument

By Joan Biskupic
Washington Post Staff Writer
Tuesday, March 31, 1998; Page A05

The Supreme Court agreed yesterday to decide whether a lawyer for the late White House deputy counsel Vincent W. Foster Jr. must relinquish notes of conversations between the two men to Whitewater prosecutor Kenneth W. Starr.

The court said it would rule on whether the attorney-client privilege, which keeps communications confidential, dissolves when the client dies. Foster committed suicide nine days after meeting with his lawyer, James Hamilton.

The issue is of broad national importance because the court will address for the first time whether an individual can be assured that discussions with a lawyer will not be revealed to prosecutors, family members or others after the individual's death. For that reason, groups representing both the legal profession and the terminally ill took the unusual step of urging the justices to intervene, saying that if the attorney-client privilege ends at death, people will be afraid to tell their lawyers secrets about assets or relationships that could embarrass friends and family.

But because the justices are not likely to decide the issue until next year, their review will delay considerably Starr's investigation of Hillary Rodham Clinton's role in the 1993 firings at the White House travel office. While the White House has not taken a position in the case, it has in other matters relating to Starr's investigation engaged in strategies that have stalled proceedings. The conversations at issue between Hamilton and Foster related to the firings and how troubled Foster was about the episode.

Starr had asked the justices to leave in place a ruling by the D.C. Circuit Court of Appeals that the death of a client changes what would otherwise be an absolute privilege between attorney-client communications. Noting that he has been trying for more than two years to get the Foster notes, Starr said, "Delay of this magnitude seriously impedes a grand jury investigation."

Yesterday, Starr said in a statement that he regretted the delay but will argue the case on the court's schedule. The justices accepted the case for the term that begins in October.

Starr began his investigation into the Arkansas land deal known as Whitewater in 1993 and since that time several legal issues have been appealed to the Supreme Court, though this is the first that the justices have actually agreed to hear. Starr is now pursuing perjury and obstruction of justice assertions relating to statements President Clinton may have made about former White House intern Monica Lewinsky.

The attorney-client privilege refers to a client's right to refuse to reveal private talks with a lawyer and to prevent the lawyer or anyone else from revealing them. The privilege rests on the idea that such a protection allows for full and frank disclosure and helps a client obtain the best advice and representation.

When a panel of the D.C. Circuit ruled in Starr's favor, by a 2-1 vote, it emphasized the importance of balancing that interest with the needs of a criminal investigation. The appeals court opinion, written by Judge Stephen F. Williams and joined by Judge Patricia M. Wald, said preserving the privilege in a criminal matter "obstructs the truth-finding" process and said people worry far less about what their reputations will be after death.

Judge David S. Tatel dissented, noting the long history of the attorney-client privilege and saying that people who confide in lawyers should be able to take secrets to the grave.

In his appeal, Hamilton stressed that many Americans who learn they have a life-threatening illness, are elderly or otherwise are facing death may want to talk to lawyers about matters with criminal implications. He said if the decision is allowed to stand, "they do so at peril because, after they die, prosecutors who show need for the evidence can obtain access to their attorneys' notes."

Although the case arose in the context of a grand jury investigation, Hamilton, of the law firm of Swidler & Berlin, and the American Bar Association, in a "friend of the court" brief, said once an exception is allowed, others may follow.

The bar association, in its brief, took issue with the notion that people worry less about how their reputations endure. "The maxim that 'a good reputation is more valuable than money' has survived for centuries," the ABA said in the case of Swidler & Berlin v. United States.

Staff writer Susan Schmidt contributed to this report.

© Copyright 1998 The Washington Post Company

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