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Starr Says Dead Men Should Tell Tales

By Walter Pincus
Sunday, May 24, 1998; Page C02

Independent Counsel Kenneth Starr has picked so many legal fights over so many issues that it's getting hard to keep track. There have been battles over claimed executive privileges, reporter privileges and Secret Service privileges.

But the contest with the greatest potential impact on regular people -- that is, those who don't happen to be presidents or reporters or Secret Service agents -- is Starr's challenge to the privilege that protects individuals from having their secrets divulged by lawyers they have hired to represent them.

It is Starr's contention -- simply stated -- that once a person (in this case former White House lawyer Vincent Foster) is dead, the protection can die with him. If a prosecutor wants the information for a federal grand jury, he should get it. Starr's attack on the lawyer-client privilege -- in pursuit of notes taken by Foster's attorney in a conversation with Foster just days before his suicide -- is yet another example of the kind of dogged, no-holds-barred tactics that have astonished lawyers and prosecutors alike. Without a real boss to challenge him, Starr is like the proverbial bull in a china shop -- willing to attack a centuries-old privilege, without apparent regard for the broader implications.

The Supreme Court will hear arguments on the issue June 8 in Swidler & Berlin and James Hamilton v. United States. If the justices agree with Starr -- and an appellate court ruling in Starr's favor -- it could bring fundamental change to the law.

As things now stand, if you're dying and you want to tell all to your lawyer for whatever reason, he can assure you that everything you say will be kept in confidence, period, and that you should tell him the whole story.

If the court creates an exception, the lawyer will have to say something very different -- something like the wording offered by U.S. Court of Appeals Judge David Tatel in his dissent in the case: "I will hold all our conversations in the strictest of confidence. But when you die, I could be forced to testify -- against your interests -- in a criminal investigation or trial, even of your friends or family . . . . Now please tell me the whole story."

That is why those who have filed or joined briefs against Starr's argument include not only the American Bar Association and the Association of Criminal Defense Lawyers, but the National Hospice Organization and the American Psychiatric Association.

The psychiatrists fear the impact on their privileged relationship with patients. The National Hospice Organization is involved because, in its words, "in addition to the physical, spiritual, social and emotional care and support provided by hospices, people in the final stage of life often need legal services, and the attorney-client issue . . . therefore is of particular concern . . . ."

Neither the appeals court in Washington (which ruled in Starr's favor) nor the lawyers in the case could find a previous example of a federal prosecutor in a criminal matter trying to break the attorney-client privilege when the client is a dead man. So embedded is the principle of confidentiality that defense lawyers have failed to get the veil lifted even if they argued that it could help exonerate the accused.

Prosecutors have often wrangled with defense lawyers over whether the lawyer-client privilege is being falsely invoked to hide relevant information. But Starr is not contesting the relationship between Foster and his lawyer.

Only in cases involving wills and testaments -- where someone is trying to determine the intent of the deceased -- have courts permitted the sort of intrusion Starr now seeks.

In his latest brief to the Supreme Court, Starr points to cases where wills are disputed to support his effort to break the privilege. The "need for determining whether a crime has been committed," Starr argues, "warrants at least the parity of treatment" given to resolving disputes over wills.

Starr's brief does not discuss the fact that in one case the deceased's true wishes are being determined, and in the other his words may be used against his wishes to the legal detriment of perhaps his family or friends.

At issue in the case is Starr's subpoena for notes of a conversation that then-deputy White House counsel Foster had with his attorney, James Hamilton, in July 1993. Foster was a personal friend of both President Clinton and the first lady, as well as Hillary Rodham Clinton's law partner at an Arkansas law firm in the 1980s.

The independent counsel's investigation did not begin until after Foster's suicide. Were Foster alive, he would have been a witness of great interest to Starr in his broad investigation of the Whitewater land deal and into possible perjury or obstruction of justice in the congressional investigations of the 1993 firings of White House Travel Office employees.

Alive, Foster could have been subpoenaed like any other witness in the case, and Starr would have had no success in compelling Foster's personal lawyer -- Hamilton -- to turn over his notes of conversations with his client, as those would be unquestionably protected.

In his investigation now, Starr is essentially trying to reconstruct what Foster knew and might have said to a grand jury were he available as a witness. Starr and his colleagues have already obtained Foster's White House files, read his personal diary, questioned his White House colleagues and the travel office personnel, interviewed Foster's wife and children several times and even interviewed his 80-year-old mother.

Hamilton's notes are the only thing left.

At the time in July 1993 when the meeting with Hamilton took place, Foster was under enormous personal pressures. I don't write this as an outsider. Foster was a friend. I first met him in January 1993 over inauguration weekend, introduced by mutual friends from Little Rock, my wife's hometown and a place I had regularly visited for almost 30 years. Foster had never worked in government nor taken part in the kind of brutal political infighting that greeted the Clinton administration in its first months.

In fact, during a lunch I had with Foster two days before he met with Hamilton, he complained about being the target of press criticism and said he felt that he had failed in assisting his friends -- the president and first lady -- in his first six months on the job.

Foster had asked to meet with Hamilton to discuss his concerns about a possible congressional investigation of the travel office and his need for a lawyer.

When Foster and Hamilton sat down in the living room of the attorney's Northwest Washington home that Sunday morning, July 11, 1993, Foster, a lawyer himself, started by asking Hamilton for assurance that what he was about to say would be protected by the attorney-client privilege and therefore not disclosed to anyone without his prior approval.

"I am totally certain of one thing," Hamilton told the U.S. Court of Appeals in Washington last June. "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 he took only sketchy notes in the two hours of conversation. He wrote words here and there that were spread over only three pages. In a court brief last year, Hamilton described them as "fragmentary, episodic and impressionistic notes" that are almost entirely his own "mental impressions, observations, conclusions, and plans for action."

U.S. District Court Chief Judge John Garrett Penn read the three pages of notes in camera when the issue was first raised in his court almost two years ago, and then ruled in January 1997 that they were privileged. He wrote that they "represent the mental reflections of the lawyer [Hamilton]."

He found "the need of the grand jury does not outweigh the privileges asserted," according to his written opinion.

Writing for the court of appeals, which reversed Penn, Judge Stephen F. Williams said "the costs of protecting communications after death are high" because the client has been removed as a source of information.

Plus, he said, the very fact of the client's death eliminates the possibility that a client could be prosecuted on the basis of a lawyer's revelations and thus deterred -- before death -- from telling all to his legal representative.

Moreover, any "chilling effect" on lawyer-client candor would be limited because breaches of the privilege should only apply to communications of "substantial" importance to "significant aspects" of a particular crime, and only in situations where sufficient evidence is otherwise unavailable.

The Williams solution was for the notes to be returned to a district court judge, who would read them in camera and decide whether to release any portion of them to Starr's prosecutors based on balancing the need for attorney-client confidentiality against the requirements of the grand jury inquiry.

Should Starr prevail in the Supreme Court, however, the implications for future criminal cases would be as broad as they would be for individuals seeking advice on the eve of death.

Two Washington criminal lawyers, Mark H. Tuohey III, who was a Starr deputy, and Richard Ben-Veniste, who served as Democratic counsel on the Senate Whitewater investigation, each said that if the Supreme Court rules for Starr, they expect the independent counsel would be free to question Hamilton not just about what was meant by the notes turned over, but on everything Foster said in his conversation with Hamilton that was relevant to the investigation -- whether it was in the notes or not. Under the law, they say, there is no distinction between notes of a conversation and testimony about that conversation from the individual who took the notes.

Both Tuohey and Ben-Veniste agree that, if Starr wins, future prosecutors and even defense attorneys could use the precedent to subpoena attorneys for deceased clients who had been targets, subjects or witnesses in criminal investigations.

" . . . Hundreds of thousands if not millions of Americans live today -- in hospitals, nursing homes, hospices, or in their own homes -- in the expectation that they may soon die," the American Bar Association wrote in a brief it has filed in the Supreme Court case. "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. These might include wrongs done to others by themselves, their friends, or members of their families; hidden assets or financial transactions; or illegitimate children or relationships . . . . The attorney-client privilege exists in large part because disclosure to lawyers of secrets such as these enables people to obtain advice and assistance to guide future action or to rectify or ameliorate the consequences of past actions.

"Absent the assurance of confidentiality, such disclosures likely would never be made."

Walter Pincus is a reporter on The Post's National staff and a part-time student at Georgetown University Law Center.

© Copyright 1998 The Washington Post Company

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