Opposition Brief — Swidler & Berlin v. United States

No. 97-1192

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF FOR THE UNITED STATES

IN OPPOSITION

ee eee

~~ eee

QUESTIONS PRESENTED

1. Whether the attorney-client privilege under

Fed. R. Evid. 501 authorizes disclosure of informa-

tion “whose relative importance is substantial” in

federal criminal proceedings after the client’s death.

2. Whether the work product doctrine authorizes

disclosure of an attorney’s notes of an interview with

a witness who is deceased and therefore unavailable.

ii

PARTIES TO THE PROCEEDING

The parties to the proceeding are the United States,

represented in this criminal investigation by the In-

dependent Counsel in re: Madison Guaranty Savings

& Loan Association, see 28 U.S.C. §594(a); James

Hamilton; and the law firm Swidler & Berlin.

TABLE OF CONTENTS

QUESTIONS PRESENTED 000.000.000.000 ccccseeseeeeeee

PARTIES TO THE PROCEEDING...

TABLE OF AUTHORITIES |... mn

OPINIONS BELOW AED

JURISDICTION ......... Na

a sige

Se

Se |

(iii)

18

iv

TABLE OF AUTHORITIES

Cases Page

Branzburg v. Hayes, 408 U.S. 665 (1972) 8, 15, 16

Cohen v. Jenkintown Cab Co., 357 A.2d 689 (Pa.

A Re ene he) 10, 17

Fisher v. United States, 425 U.S. 391 (1976)....... 9

Hitt v. Stephens, 675 N.E.2d 275 (Ill. App. 1997) .. 14

In re Grand Jury Investigation, 599 F.2d 1224 (3d

| EL em cael Sea 18

In re John Doe Corp., 675 F.2d 482 (2d Cir.

ES ee ee meets Lie: LE ee 18

In re John Doe Grand Jury Investigation, 562

Fk ET fl UD eee 10

State v. Gause, 489 P.2d 830 (Ariz. 1971)... ee 9,17

State v. Kump, 301 P.2d 808 (Wyo. 1956) 10, 17

State v. Macumber, 544 P.2d 1084 (Ariz. 1976) 10, 16

Trammel v. United States, 445 U.S. 40 (1980). 9

United States v. Calandra, 414 U.S. 338 (1974)... 7

United States v. Gillock, 445 U.S. 360 (1974)........ 9

United States v. Nixon, 418 U.S. 683 (1974) 9, 16

United States v. Nobles, 422 U.S. 225 (1975)... 13

United States v. R. Enterprises, Inc., 498 U.S. 292

| Ele RD CE aan 7

University of Pennsylvania v. EEOC, 493 U.S. 182

RE Sa Pes Pat i eR 16

Upjohn Co. v. United States, 449 U.S. 383 (1981). 13

Statutes and Rules

EN RE area ee ee eek aT ey 2

28 U.S.C. § 588 (e) (1) ............................ ac ate 2

TIO Sc COM AE tN Reet aL ii

RET Se Bee 2

8 ESAT TY OTN state 2

iy I ciceet hii ala ee tea 2

D.C. Rules of Professional Conduct 3.3(a) (4) —..... 14

D.C. Rules of Professional Conduct 3.3(b) ..... ... 14

Model Rules of Professional Conduct 3.3(a) _.... _... 14

Model Rules of Professional Conduct 3.3(b) _...__... 14

Model Rules of Professional Conduct 3.3 comment

v

TABLE OF AUTHORITIES—Continued

Page

I a i

FS 8 Say See ee ee | 7

Miscellaneous

19 ALS Procoedinge, BOOB ann ccnnccecceeeccnccecoereeeecee 12

Frankel, The Attorney-Client Privilege After the

Death of the Client, 6 Geo. J. Leg. Ethics 45....10, 11, 15

In re Madison Guaranty Savings & Loan Associa-

tion (D.C. Cir. Spec. Div. Aug. 5, 1994) 2

1 McCormick on Evidence § 94 (4th ed. 1992)... 8,12

2 Mueller & Kirkpatrick, Federal Evidence § 197

eS 8,12

Restatement (Third) of the Law Governing Law-

yers §§ 127, 1388 (March 29, 1996) 11

Wolfram, Modern Legal Ethics § 6.3.4 (1986)... 12, 15

24 Wright & Graham, Federal Practice and Proce-

gL Fee RE ee ea 12

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

No. 97-1192

SWIDLER & BERLIN AND JAMES HAMILTON,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals and a redacted

version of the dissent are reported at 124 F.3d 230

and printed in full in Petitioners’ Appendix (Pet.

App. la-26a). The court’s order on petition for re-

hearing is reported at 129 F.3d 637 (Pet. App. 27a-

32a). The district court’s two substantively identical

opinions (one for each of the two subpoenas at issue)

are unreported (Pet. App. 34a-42a and 44a-53a).

2

JURISDICTION

The judgment of the court of appeals was entered

on August 29, 1997. The court denied a petition for

rehearing on November 21, 1997. The jurisdiction of

this Court is invoked under 28 U.S.C. § 1254(1).

STATEMENT

1. On August 5, 1994, pursuant to the application

of Attorney General Reno under 28 U.S.C. § 592(c),

the United States Court of Appeals for the District

of Columbia Circuit, Division for the Purpose of

Appointing Independent Counsels (Special Division),

appointed Kenneth W. Starr as Independent Counsel

to represent the United States in investigating par-

ticular matters regarding President and Mrs. Clinton,

Whitewater Development Corp., and Madison Guar-

anty Savings & Loan. In re Madison Guaranty Sav-

ings & Loan Association (D.C. Cir. Spec. Div. Aug. 5,

1994). In March and April 1996, acting under 28

U.S.C. $§ 593(c) (1) and 594(e), the Attorney Gen-

eral and the Special Division authorized the Office of

the Independent Counsel to investigate whether par-

ticular individuals had made false statements or

committed other federal crimes during various gov-

ernment investigations of the firings of White House

Travel Office employees.

2. On May 19, 1993, the White House fired seven

employees of the White House Travel Office. In re-

sponse to criticism of the firings, the White House

conducted an internal management review, issued a

report, and reprimanded four White House officers

and employees. On July 2, 1993, the Supplemental

Appropriations Act of 1993, Pub. L. 103-50, was

enacted, which required the General Accounting Office

to review the firings.

3

8. On Sunday, July 11, 1993, James Hamilton,

an attorney with the Washington, D.C., law firm of

Swidler & Berlin, met with Deputy White House

Counsel Vincent W. Foster, Jr. Mr. Foster, a former

partner of Hillary Rodham Clinton’s at the Rose Law

Firm in Little Rock, Arkansas, had been involved in

the process leading up to the Travel Office firings,

although he had not been reprimanded. The July 1

conversation related to Mr. Hamilton’s possible repre-

sentation of Mr. Foster with respect to congressional

or other investigations of the Travel Office matter.

At the meeting, Mr. Hamilton took three pages of

notes, which are at issue in this case. Pet. App. 31a.

On July 20, 1993, nine days after meeting with

Mr. Hamilton, Mr. Foster was found dead in Fort

Marcy Park in suburban Virginia. A series of official

investigations ensued, all of which have concluded

that Mr. Foster had killed himself by gunshot in

Fort Marcy Park.

4. There is no dispute that Mr. Foster would have

been an important witness in this Office’s investiga-

tion of whether particular individuals made false

statements or committed other federal crimes during

investigations of the Travel Office firings. Because

Mr. Foster is deceased, this Office has attempted,

consistent with traditional and standard law enforce-

ment practice, to obtain evidence of Mr. Foster’s

knowledge of the matter through any oral statements

or writings he may have made. The notes taken by

Mr. Hamilton during his meeting with Mr. Foster on

July 11, 1993, regarding the Travel Office matter are

highly relevant to this Office’s investigttion.

5. On December 4, 1995, at a time when this Office

was investigating Mr. Foster’s death, the grand jury

4

subpoenaed Mr. Hamilton’s notes and other docu-

ments. Petitioners (Mr. Hamilton and his law firm,

Swidler & Berlin) moved to quash or modify the

subpoena. On order of the district court, Mr. Hamil-

ton produced a privilege log on July 9, 1996. On July

16, 1996, this Office identified and sought various

documents listed on that log, including the notes of

the 1993 conversation with Mr. Foster. In resisting

the subpoena, Mr. Hamilton argued, first, that the

notes were protected by the attorney-client privilege,

which he contended applies even after the client’s

death; and, second, that they were protected by the

work product doctrine.

On December 16, 1996, the district court granted

Mr. Hamilton’s motion in relevant part without spe-

cifically addressing whether attorney-client privilege

survives the death of the client. The court found the

notes protected by the attorney-client privilege and

work product doctrine.

6. This Office appealed, and the court of appeals

ieversed. The court noted that in the vast majority

of cases addressing the issue—particularly those con-

cerning testator’s intent in a will dispute—courts

have held the privilege inapplicable. Pet. App. 3a.

The court also emphasized that most commentators

have “supported some measure of post-death curtail-

ment” of the privilege. Pet. App. 4a. The court

pointed out that Wright & Graham have emphat-

ically rejected the suggestion that the privilege

should continue to apply after death. So, too, Mc-

Cormick has argued that the privilege should not

apply after death. The court also cited Mueller &

Kirkpatrick, who likewise concluded that the privilege

should not apply after death. Pet. App. 4a-5a. The

court cited Learned Hand’s argument that privilege

5

should not apply after death. Finally, the court

pointed out that the American Law Institute, in the

latest draft of the Restatement (Third) of the Law

Governing Lawyers, had rejected a perpetual privi-

lege. The court noted that the ALI had suggested

“a general balancing test” under which “a tribunal

be empowered to withhold the privilege of a person

then deceased.” Pet. App. 5a.

The court concluded: “The costs of protecting com-

munications after death are high. Obviously the

death removes the client as a direct source of infor-

mation; indeed, his availability has been convention-

ally invoked as an explanation of why the privilege

only slightly impairs access to truth.” Pet. App. 7a.

On the other side of the balance, the court found that

“the risk of post-death relevation will typically trouble

the client less” and that a post-death restriction of

the privilege to the realm of criminal litigation will

likely cause a chilling effect “fall[ing] somewhere

between modest and nil.” Pet. App. 6a-7a. The court

also noted that the individual “may even view his-

tory’s claims to truth as more deserving.” Pet—App.

7a. Because criminal liability ceases at death, the

court concluded that modifying the privilege solely

in the realm of criminal litigation, and leaving it

unaffected in civil litigation, would exert little if any

chilling effect on attorney-client communications. /d.

Following the approach advocated by the Restatement,

the court thus defined a narrow, sharply bounded

exception, limited (i) to criminal proceedings and

(ii) to statements of particular importance: “the

statements must bear on a significant aspect of the

crimes at issue, and an aspect as to which there is a

scarcity of reliable evidence.” Pet. App. 10a. The

court remanded the case to the district court for appli-

cation of this test to the notes at issue here.

6

Turning to the issue of work product, the court

distinguished factual information contained in an

attorney’s notes of an interview with an unavailable

witness from the attorney’s own evaluations. The

court stated that “[o]ur brief review of the docu-

ments reveals portions containing factual material”

and therefore rejected the district court’s conclusion.

Pet. App. 14a.

Judge Tatel dissented solely on the question of

attorney-client privilege, and “therefore [did] not

consider whether the notes are attorney work prod-

uct.” Pet. App. 15a. The court of appeals denied

petitioners’ suggestion for rehearing en banc. Pet.

App. 27a.

ARGUMENT

The decision of the court of appeals is correct and

does not conflict with any decision of this Court or

of any other court of appeals. Indeed, the decision of

the court of appeals is the first federal decision ad-

dressing the question. The panel’s decision comports

with the vast majority of decided cases addressing

the general question of whether attorney-client priv-

ilege fully survives the client’s death. It closely

tracks the virtually unanimous views advocated by

the ALI, by commentators such as McCormick, Wright

& Graham, Wolfram, Mueller & Kirkpatrick, and by

legal luminaries such as Learned Hand.

Given the novelty of the issue in the federal courts

of appeals, and th court of appeals’ decision to care-

fully follow the body of law and commentary, review

here is unwarranted, especially inasmuch as the case

arises in the midst of an ongoing grand jury

investigation.

7

I

Preliminarily, we take note of an important pru-

dential consideration: This Court’s review would

further delay an important grand jury investigation

which touches on vital matters of public concern.

The grand jury subpoena was issued over 26 months

ago, yet there still has not been a final judicial reso-

lution. Delay of this magnitude seriously impedes

a grand jury investigation. This Court’s review—on

a narrow issue of first impression with no circuit split

—would cause further lengthy delays. Because “ex-

tended litigation” impedes the “orderly progress of

an investigation,” United States v. Calandra, 414

U.S. 338, 349 (1974), and “frustrate[s] the public’s

interest in the fair and expeditious administration of

the criminal laws,” United States v. R. Enterprises,

Inc., 498 U.S. 292, 299 (1991), federal courts attempt

to avoid the “protracted interruption of grand jury

proceedings,” Calandra, 414 U.S. at 350.

The dictates of this Court’s Rule 10 are clearly not

met. There is no circuit split. The decision below

does not conflict with any decision of the Supreme

Court or any other federal court. Indeed, the deci-

sion is the first federal case addressing whether the

attorney-client privilege applies in federal criminal

proceedings after the client’s death. As the dearth

of case law suggests, the issue is exceedingly narrow,

and the court of appeals’ resolution of it will have no

effect on attorney-client privilege in civil litigation.

The novelty and the narrowness of the issue counsel

hesitation before this Court exercises its discretionary

certiorari jurisdiction.

1. Before this case, no federal court had ever had

occasion to rule on whether the attorney-client priv-

ilege applies in federal criminal proceedings after the

client’s death. In attempting to manufacture an inter-

circuit conflict, petitioners claim that the decision

conflicts with two Ninth Circuit decisions. Pet. 10.

Both of those decisions, however, are civil cases. The

court of appeals in this case stated explicitly that its

decision applies solely to criminal cases: We reject

a general balancing test in all but this narrow cir-

cumstance”—namely, “use in criminal proceedings

after death of the client.” Pet. App. 8a.

2. The court’s decision accords with the vast ma-

jority of cases addressing whether the attorney-client

privilege survives death outside the context of a fed-

eral criminal investigation. The question has arisen

most frequently in state decisions. Almost all of the

cases have involved disputes over a will. Pet. App.

3a (95% of cases raising the issue have been testa-

mentary disputes). In these testamentary cases, state

and federal courts have consistently held that the

privilege does not survive death. Sce id. The opera-

tion of the attorney-client privilege thus has been

“nullified in the class of cases where it would most

often be asserted after death.” McCormick on Evi-

dence § 94, at 348 (4th_ed. 1992); see also 2 Mueller

& Kirkpatrick, Federal Evidence § 197, at 380 (2d

ed. 1994) (privilege “inapplicable” in cases where

the communications “are most likely to be sought’’).

The court’s conclusion that the privilege does not

automatically apply after the client’s death in crim-

inal proceedings follows a fortiori from the vast body

of case law holding that the privilege does not apply

after death in testamentary disputes. As this Court

has stated, the need for evidence is “particularly

applicable to grand jury proceedings.” Branzburg v’.

Hayes, 408 U.S. 665, 688 (1972). That conclusion

9

follows as well from the deeply rooted principle that

an evidentiary privilege, which “obstructs the truth-

finding process,” must be “narrowly construed.” Pet.

App. 6a. Because the attorney-client privilege “has

the effect of withholding relevant information from

the factfinder, it applies only where necessary to

achieve its purpose.” Fisher v. United States, 425

U.S. 391, 403 (1976) (emphasis added). Given that

courts have consistently found that it is not necessary

to apply the privilege after death in testamentary

cases, it logically follows that it is not necessary to

apply the privilege after death in criminal cases—cir-

cumstances which arise less frequently and present a

far more compelling need for evidence.’

In the state courts, only a handful of criminal

cases have addressed this issue, with several conclud-

ing that the privilege does not apply after death. In

State v. Gause, 489 P.2d 830 (Ariz. 1971), for ex-

' Petitioners suggest that any privilege must apply uni-

formly in all proceedings (civil and criminal), Pet. 11, but

that argument flies in the face of settled law. Many privileges

are applied in a context-specific manner and carry less weight

in criminal proceedings than in other settings. They include,

for example, the Executive privilege for Presidential commu-

nications, United States v. Nixon, 418 U.S. 683, 712 n.19

(1974) ; the governmental privilege for deliberative processes ;

the qualified reporter’s privilege; and the informer’s privilege.

Petitioners’ separate suggestion that privileges must be

recognized to the same extent in state and federal court, Pet.

10, is likewise contrary to Supreme Court precedent. See

United States v. Gillock, 445 U.S. 360, 368 (1980) (state

evidentiary privilege “which Gillock could assert in a criminal

prosecution in state court does not compel an analogous privi-

lege in a federal prosecution”); Trammel v. United States,

445 U.S. 40, 49 (1980) (declining to recognize adverse spousal

testimony privilege although 24 states did 80).

10

ample, the defendant was found guilty of murdering

his wife and was sentenced to death. The Arizona

Supreme Court held that the attorney-client privilege

did not require exclusion of statements made by the

wife to her attorney before her death. A similar

scenario was presented in State v. Kump, 301 P.2d

808 (Wyo. 1956). The Wyoming Supreme Court held

the statements admissible, stating that “[w]le can

conceive of no public policy which would exclude the

communications such as are involved in this case.” *

Id. at 815. Of the few civil cases outside the testa-

mentary context, the only case with meaningful analy-

sis concluded that the privilege does not survive death.

Cohen v. Jenkintown Cab Co., 357 A.2d 689 (Pa.

Super. Ct. 1976).

In sum, the cases that have actually decided this

privilege issue overwhelmingly accord with the deci-

sion of the court of appeals. See Pet. App. 3a; see

also Frankel, The Attorney-Client Privilege After

the Death of the Client, 6 Geo. J. Leg. Ethies 45, 58

n.65 (1992) (95% of cases arise in testamentary

context, where privilege does not apply after death).

2In the three other state supreme court cases that have

decided the issue, the courts held that the privilege applies

after death, although there were dissents in two of those

cases. See In re John Doe Grand Jury Investigation, 562

N.E.2d 69, 72 (Mass. 1990) (Nolan, J., dissenting), advocat-

ing “limited exception to the privilege . . . where the interests

of the client are so insignificant and the interests of justice

in obtaining the information so compelling’); State v.

Macumber, 544 P.2d 1084, 1088 (Ariz. 1976) (Holahan, J.

and Cameron, C.J., dissenting) (“When the client died there

was no chance of prosecution for other crimes .... Opposed

to the property interest of the deceased client is the vital

interest of the accused in this case in defending himself

against the charge of first degree murder.”’).

1]

The court of appeals correctly found that “there is

little by way of judicial holding that affirms the sur-

vival of the privilege after death.” Pet. App. 4a.

Moreover, the “relatively rare” cases that “do actually

apply it give little revelation of whatever reasoning

may have explained the outcome.” Pet. App. 3a; see

also Frankel at 57 n.63 (“only a few judicial opin-

ions offer[] any extensive discussion”) .*

3. The court of appeals decision follows the ap-

proach advocated by the American Law Institute

and the vast majority of commentators. The Restate-

ment of the Law Governing Lawyers states that al-

lowing posthumous disclosure “would do little to in-

hibit clients from confiding in their lawyers.” Re-

statement (Third) of the Law Governing Lawyers

$127 comment d (March 29, 1996). McCormick

opposed continuation of the privilege after death,

stating: “[T]Jo hold that in all cases death terminates

the privilege . . . could not in any substantial degree

lessen the encouragement for free disclosure which

* Petitioners suggest that several evidence codes have held

the privilege applies after death in perpetuity. Pet. 13-14.

That is incorrect, as the conrt of appeals explained. Pet. App.

4a n.2, 9a. To begin wit:, most codes addressing the issue

contain a rule that the attorney-client privilege does not apply

in testamentary disputes, the very situation in which the issue

most often arises. Some state and model codes also indicate

that the privilege may be asserted by the personal representa-

tive of the client, but as the court stated, “the framing of the

posthumous privilege as belonging to the client’s estate or

personal representative both suggests that the privilege may

terminate on the winding up of the estate and reflects a

primary focus on civil litigation.” Pet. App. 4a. These provi-

sions thus say nothing about the appropriate rule in criminal

proceedings in which, unlike in civil proceedings, neither the

client nor the client’s estate is subject to liability.

12

is the purpose of the privilege.” McCormick § 94, at

350. Learned Hand also opposed the privilege after

death, saying that “a communicant who dies can have

no more interests except in a remote wav.” 19 AL/

Proceedings, 1942, at 143. The views of Mueller &

Kirkpatrick are similar: “Few clients are much con-

cerned with what will happen sometime after the

death that everyone expects but few anticipate in an

immediate or definite sense.” 2 Mueller & Kirk-

patrick, Federal Evidence § 197, at 380. Wright &

Graham concur, stating that “the typical client”

would not have “much concern for how posterity may

view his communications.” 24 Wright & Graham,

Federal Practice and Procedure § 5498, at 484

(1986). Wolfram also noted the oddity of holding

that the privilege does not continue in testamentary

cases but that it does in other cases. Wolfram, Mod-

ern Legal Ethics § 6.3.4, at 256 (1986).

4. The court of appeals decision carefully analyzes

and accommodates the competing policy goals of (i)

obtaining relevant evidence and (ii) protecting the

traditional common-law privileged relationship. On

the one hand, application of the privilege after the

client’s death would have far more serious conse-

quences than application of the privilege before death.

After a client’s death, there will be “a loss of crucial

information because the client is no longer available

to be asked what he knows.” 24 Wright & Graham

$ 5498, at 484; see also Wolfram at 256 (application

after death “in effect gives an expanded scope to the

privilege”). As the court of appeals reasoned, the

death of the client thus not only eliminates a vital

source of information; it also negates a longstanding

justification for the attorney-client privilege: that

13

the client can be questioned directly about the rele-

vant factual events. Pet. App. 7a.

On the other side of the ledger, the federal attorney-

client privilege—which is not a constitutional com-

mand but a creature of federal rule—assures the

client that certain communications to his attorney

cannot be used in federal criminal or civil proceed-

ings. Upjohn Co. v. United States, 449 U.S. 383,

389 (1981). The privilege thus tends to encourage

full and frank communications from client to attorney

and thereby furthers the policy of ensuring that clients

receive effective legal advice. The court’s decision

does not dilute that policy, however, because the

client no longer faces criminal liability after his

death, when the communications would be disclosed.

See Pet. App. 6a (“criminal liability will have ceased

altogether’).

Petitioners respond that a client may be less forth-

coming in communications to his attorney, even if

assured that they cannot be used against him to im-

pose criminal or civil liability, because of a fear that

posthumous disclosure of his communications would

adversely affect his reputation or interests of others

about whom the client cares. Pet. 8, 15. This argu-

ment suffers from a fundamental flaw: The client’s

interest in his own reputation and in protecting

friends and associates from liability cannot justify

nondisclosure of information after death because it

does not justify nondisclosure of information before

death. When the client is alive, he must testify truth-

fully as to all facts—regardless of how harmful those

facts are to his reputation or to the interests of

others. See United States v. Nobles, 422 U.S. 225,

233 n.7 (1975) (“Testimony demanded of a witness

14

may be very private indeed”).* And the client who

testifies must disclose the same factual information

that he disclosed to his attorney; the attorney cannot

stand pat if the client commits perjury.’ After the

client’s death, the attorney simply would disclose

the same factual information that the client himself

would have disclosed had the client been alive. Given

this reality, petitioners’ argument based on reputation

and protecting others has no more force with respect

to post-death application of the privilege than it does

with respect to the client’s duty to testify truthfully

when he is alive.

Moreover, the courts have rejected petitioners’ chill-

ing-effect argument in testamentary cases—the very

situation where the communications disclosed are the

most sensitive and personal imaginable. “Estate plan-

ning .. . may be based on considerations one would

prefer never to reveal.” Hitt v. Stephens, 675 N.E.2d

275, 279 (Ill. App. 1997). For example, as the court

noted here, “a decedent might want to provide for an

illegitimate child but at the same time much prefer

4 The client can assert the Fifth Amendment privilege but

only to protect himself from compelled self-incrimination, not

to protect himself from embarrassment or to protect others.

Moreover, the client who interposes the Fifth Amendment

privilege can be immunized and then must testify truthfully

as to all relevant facts.

5 See D.C. Rules of Professional Conduct 3.3(a) (4), (b);

Model Rules of Professional Conduct 3.3(a)-(b) & comment 6

to Rule 3.3 (“an advocate must disclose the existence of the

client’s deception to the court or to the other party” except

when client is criminal defendant). By communicating a

particular version of facts to his attorney, the client essen-

tially commits himself to that same version of facts if he

subsequently testifies.

ee

a

15

that the relationship go undisclosed.” Pet. App. 9a.

The will-contest situation thus is “the one occasion

above all others when a client is likely to be moved to

silence in conversations with a lawyer if the client

becomes aware that disclosures can be made after the

client’s death.” Wolfram at 256 (emphasis added).

Yet the courts have consistently held that the need

to settle disputes over wills trumps any such interest

in reputation or privacy, and that the attorney-client

privilege does not apply after death in such cases."

Furthermore, empirical support for petitioners’

argument is nonexistent. See Frankel at 61 (avail-

able empirical evidence “tells us little’); ef. Branz-

burg, 408 U.S. at 693-694 (rejecting First Amend-

ment privilege claims where “[e]stimates of the in-

hibiting effect of such subpoenas . . . are widely

divergent and to a great extent speculative”). Peti-

tioners’ many suggestions that Mr. Foster would

have wanted to conceal the truth of this matter are

speculative at best. As the court of appeals stated,

Mr. Foster, like others, might “view history’s claims

to truth as more deserving.” Pet. App. 7a. More-

over, because the court’s decision is limited to the

criminal context, cases where the situation will arise

are so rare—as reflected in the fact that this is the

first federal case ever litigated—that any hypothe-

sized chilling effect would be minimal. See id. (“To

the extent, then, that any post-death restriction of the

* Petitioners attempt to explain those cases by suggesting

that testators actually intended for attorney-client communi-

cations to be disclosed after death. Pet. 11. They are wrong.

The court below and the commentators have correctly re-

jected that post hoc rationalization, for it is, in fact, highly

unlikely that all testators actually intend that such commu-

nications be disclosed. See Pet. App. 9a; Wolfram at 256.

16

privilege can be confined to the realm of criminal

litigation, we should expect the restriction’s chilling

effect to fall somewhere between modest and nil.’’) ;

cf. Nixon, 418 U.S. at 712 (“we cannot conclude that

advisers [to the President] will be moved to temper

the candor of their remarks by the infrequent occa-

sions of disclosure” in criminal proceedings). Even

if there were a marginal chilling effect in certain

cases, this Court has consistently concluded that a

marginal chilling effect on a protected constitutional

or common-law privilege is outweighed by the in-

terest in obtaining relevant evidence for criminal

proceedings.’

5. The implications of petitioners’ position war-

rant brief mention. Those implications are best un-

derstood by examining the kinds of situations where

the issue can arise and has arisen.

Suppose, for example, that a crime has occurred

and that there are two suspects, one of whom is now

deceased but had previously communicated to an

attorney. That suspect’s communications to the at-

torney could exculpate the still-living suspect. Under

petitioners’ approach, courts could not compel dis-

closure of that information—despite the manifest

injustice that could result. See State v. Macumber,

544 P.2d 1084 (presenting those facts).

* See Nixon, 418 U.S. at 712 (rejecting Executive privilege

claim although Court acknowledges that the President and his

advisers need to communicate confidentially); Branzburg,

408 U.S. at 693 (rejecting First Amendment privilege claim

although “argument that the flow of news will be diminished

_, . is not irrational’); see also University of Pennsylvania

v. EEOC, 493 U.S. 182, 193 (1990) (rejecting First Amend-

ment privilege claim although accepting that “confidentiality

is important to proper functioning of the peer review

process’’).

17

Similarly, a now-deceased witness might have ob-

served the commission of a crime and discussed it

with his attorney. Again, the information provided

by the witness could exculpate or inculpate another

person, but petitioners’ absolutist approach nonethe-

less could prevent disclosure. Cf. Cohen v. Jenkintown

Cab Co,, 357 A.2d 689 (presenting similar scenario

in civil context).

Or a wife battered by her husband might recount

to her attorney the husband’s threats to her life.

Under petitioners’ approach, if the wife were then

found beaten to death, the courts could not require

disclosure of the information she had communicated

to the attorney, despite the manifest injustice that

could result. See State v. Gause, 489 P.2d 830; State

v. Kump, 301 P.2d 808 (addressing issue on those

facts).

No policy reason justifies these predictable results

flowing from petitioners’ desired culture of permanent

secrecy. These examples of the severe harm that

petitioners’ proposed secrecy rule would generate

illustrate powerfully why the vast majority of courts,

the ALI, and respected commentators have rejected

it.

II

Petitioners also seek review on the work product

issue. The court of appeals concluded that an attor-

* Petitioners now, for the first time, apparently are willing

to carve out exceptions ad hoc for various of these situations

to make their drastic position more palatable. Pet. 11-12.

But the many exceptions that petitioners allow do no more

than expose the hollowness of their legal theory. The only

coherent rationale justifying petitioners’ tolerance of numer-

ous “exceptions” is that they are not this case. That hardly

is a persuasive position.

18

ney’s notes of an interview with a deceased witness

are not protected from disclosure under all cireum-

stances. The federal courts of appeals that have ad-

dressed the issue have reached the same conclusion.

See Jn re John Doe Corp., 675 F.2d 482, 492 (2d Cir.

1982); Jn re Grand Jury Investigation, 599 F.2d

1224 (3d Cir. 1979) (requiring production of at-

torney memoranda of interview with deceased em-

ployee). Likewise, the Restatement provides that

courts may order production of “notes in redacted

form” when the “notes of an interview contain[ ]

both the recollections of the witness and the thoughts

of the lawyer who made the notes.” Restatement

$138 comment c. Petitioners cite not a single case

reaching the contrary conclusion, and their argument

has no support in law or policy.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be denied.

Respectfully submitted,

KENNETH W. STARR *

Independent Counsel

STEPHEN BATES

Associate Independent Counsel

Office of the Independent Counsel

1001 Pennsylvania Avenue, N.W.

Suite 490 North

Washington, D.C. 20004

(202) 514-8688

* Counsel of Record