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Foster lawyer James Hamilton answered reporters' questions in Washington Thursday. (James M. Thresher / The Post)


Related Links
_ Full Text of Supreme Court Decision and Dissent

_ Foster Lawyer: Notes Should Be Secret (Washington Post, June 9)

_ 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


Attorney-Client Privilege After Death Is Upheld

By Ruth Marcus and Susan Schmidt
Washington Post Staff Writers
Friday, June 26, 1998; Page A01

Lawyers cannot be forced to reveal their clients' confidences even after the client dies, the Supreme Court ruled yesterday, rebuffing independent counsel Kenneth W. Starr's effort to obtain notes made by the lawyer for Vincent W. Foster Jr. shortly before the deputy White House counsel committed suicide.

The 6 to 3 ruling frustrates the independent counsel's effort to obtain additional information about whether first lady Hillary Rodham Clinton lied in denying she played a role in the 1993 firing of White House travel office employees.

Starr's bid for the notes triggered an outcry from groups representing lawyers and the terminally ill, who warned that people would be deterred from speaking candidly with their lawyers if the court allowed the attorney-client privilege to be penetrated after death.

Chief Justice William H. Rehnquist, writing for the majority, agreed with those broad concerns. "Knowing that communications will remain confidential even after death encourages the client to communicate fully and frankly with counsel," he wrote.

He said clients may impart confidences about family members, financial problems or other matters that they would want their lawyers to keep secret even after they die. "In the case at hand," Rehnquist wrote, "it seems quite plausible that Foster, perhaps already contemplating suicide, may not have sought legal advice from Hamilton if he had not been assured the conversation was privileged."

Justice Sandra Day O'Connor, joined by Justices Antonin Scalia and Clarence Thomas, dissented. The attorney-client privilege, O'Connor said, could be overridden after the client's death in criminal cases where there was a "compelling law enforcement need for information" or where defendants need the information to exonerate themselves.

"In my view, the cost of silence warrants a narrow exception to the rule that the attorney-client privilege survives the death of the client," O'Connor wrote.

The majority opinion left open the possibility that the privilege could be breached in "exceptional circumstances implicating a criminal defendant's constitutional rights." The case, Swidler & Berlin and James Hamilton v. United States, was argued just two weeks ago and decided on an unusual expedited basis after Starr asked the justices to avoid further delaying his investigation.

In a news conference at his law firm yesterday, Hamilton expressed relief. "This case, quite frankly, more than being a victory for me, is a victory for the legal profession," he said. He said the three pages of handwritten notes taken during his two-hour meeting with Foster "will remain as they have been, under lock and key, safely protected."

With tears welling in his eyes, Hamilton said he had spoken with Foster's widow, Lisa, and his sister, Sheila Anthony, who gave him a bottle of champagne and a note that said, "Wherever Vince is, he's smiling, too." Asked whether historians eventually would see the notes of his conversation with Foster, Hamilton said, "I will not answer that question."

Starr, in a statement, said his office was "disappointed" by the court's decision but that it would continue to pursue the investigation "as thoroughly and expeditiously as possible."

A separate attorney-client privilege dispute between Starr and the White House is set for oral argument at the federal appeals court here Monday. That case concerns whether lawyers in the White House counsel's office may assert the privilege when called to testify before Starr's grand jury about the Monica S. Lewinsky matter.

White House counsel Charles F.C. Ruff said he was "obviously pleased that what we've always viewed as the time-honored attorney-client privilege is viewed the same way by the court." Asked whether it might bode well for the White House's argument Monday, he said, "to the extent the court affirms the basic, underlying principle, we certainly hope so."

More immediately, however, Starr's failure to get the notes likely will close out the travel office portion of his investigation, which appeared to have been largely completed more than a year ago without any charges being filed.

Starr had been looking at Foster's involvement with the travel office as part of his inquiry into Foster's death but began to probe possible crimes by others in 1996, after the belated disclosure of a memo by former White House director of administration David Watkins. In that memo, Watkins said he abruptly fired the seven travel office employees at Hillary Clinton's "insistence." The Watkins memo contradicted the versions both he and Hillary Clinton gave to congressional investigators in which both insisted that she was not directly involved in the May 1993 decision.

On July 11, 1993, Foster, a former law partner of Hillary Clinton's, went to Hamilton's home to discuss hiring Hamilton for any congressional probes growing out of the firings. At the start of the conversation, Foster asked Hamilton if it would be confidential and, Hamilton told the justices at oral argument, he assured Foster "without hesitation" that it would be. Nine days later, Foster shot himself.

The ensuing legal battle over Hamilton's notes has lasted almost three years since Starr's office subpoenaed them in December 1995. A district court judge upheld Hamilton's refusal to turn them over. The federal appeals court here, in a 2 to 1 ruling along the lines of O'Connor's dissent, said the attorney-client privilege was not absolute after a client's death but instead should be balanced against the importance of the information to a criminal case.

In arguing that the privilege should not be absolute after the client's death, associate independent counsel Brett M. Kavanaugh pointed out already existing exceptions to the rule, allowing lawyers to testify, for example, about their clients' intentions in cases of disputed wills.

But yesterday's ruling rejected Starr's position as threatening the long-established guarantee of secrecy for those who seek legal counsel. Mark I. Levy, who wrote a friend-of-the-court brief for groups representing criminal defense lawyers, corporate lawyers, hospices and psychiatrists, called it "a very gratifying victory for the legal profession and the clients we represent. The court reaffirmed what I think virtually all lawyers have long understood."

Said American Bar Association president Jerome J. Shestack, "I think it's good for clients; it's important for the legal profession; and I think it's good for the country that people will have confidence in that what they tell their attorney will remain in confidence."

© Copyright 1998 The Washington Post Company

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