Swidler & Berlin v. United States
Citation: 524 U.S. 399 (U.S. Supreme Court, 1998)
Facts
James Hamilton, an attorney at Swidler & Berlin, met with Vincent Foster (then Deputy White House Counsel) nine days before Foster’s death. Foster discussed personal concerns, including potential legal exposure. After Foster’s suicide, Independent Counsel Kenneth Starr sought Hamilton’s notes of that meeting in a grand jury proceeding, arguing that the attorney-client privilege does not survive the client’s death — or at minimum, yields to the grand jury’s need for evidence.
Issue
Does the attorney-client privilege survive the death of the client, shielding confidential communications from compelled disclosure in a criminal grand jury proceeding?
Holding
The Supreme Court, 6-3, held that the attorney-client privilege survives the client’s death and cannot be overcome by the government’s need for evidence in a criminal investigation. Chief Justice Rehnquist reasoned that a posthumous exception would chill candid attorney-client communications, since clients would be aware their communications could later be disclosed if they die and a criminal investigation ensues.
Rule
The attorney-client privilege survives the death of the client. A client’s confidential communications to counsel do not lose their privileged character merely because the client dies, even in the context of a criminal grand jury investigation. There is no posthumous exception to the privilege based on need.
Significance
Swidler & Berlin resolves a circuit split on whether the attorney-client privilege survives death, answering firmly in the affirmative. The decision reinforces the foundational rationale for the privilege — encouraging full and frank disclosure to counsel by assuring clients that their communications will remain confidential. The case arose from the Whitewater independent counsel investigation and carries political significance beyond its doctrinal importance. It is routinely taught in professional responsibility courses as the leading case on posthumous privilege.