Amicus Curiae Brief — Swidler & Berlin v. United States

vePiee to Wee \

Ye ee ee

FEB 17 1996

CLERK

No. 97-1192

In the Supreme Court of the Gnited States

OcrosBer TERM, 1997

SwIDLER & BERLIN, ET AL., PETITIONERS,

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR AMICI CURIAE NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE LAWYERS,

AMERICAN CORPORATE COUNSEL ASSOCIATION,

AND NATIONAL HOSPICE ORGANIZATION IN

SUPPORT OF PETITIONERS

Of Counsel: Mark I. Levy

Lisa B. Kemler Counsel of Record

Counsel for National Association Timothy K. Armstrong

of Criminal Defense Lawyers Jamison B. Taylor

John F. Stanton

Steven Alan Bennett HOWREY & SIMON

Counsel for American Corporate 1299 Pennsylvania Ave., N.W.

Counsel Association Washington, D.C. 20004

(202) 783-0800

Ann Morgan Vickery

Counsel for National Hospice Counsel for Amici Curiae

Organization

he

TABLE OF CONTENTS

INTEREST OF THE AMICI CURIAE ..................ccccccssssceeeecsees |

REI FETRTIIIGS cccniccsctscecstssssisinsnesiiticuiihimsiginibiiiaasinintadaideinigapuianliataindah 2

|. THE ABSOLUTE ATTORNEY-CLIENT

PRIVILEGE SURVIVES THE DEATH OF THE

CITT vcivtcenitecinansiniadal seiabishiniideiiabaiinaiadsanialeciaapvpeaiaits 2

A. An Absolute Attorney-Client Privilege Serves ‘To

Encourage Complete And Candid

Communications By Clients, And The Common

Law And Evidence Codes Recognize That The

Privilege Does Not Abate Upon The Death Of

Tne CIO. ccccccinscimnintinicucenstnsianniatisdintaiapeasiaianminmecteasdiinion +

B. The Panel Erred In Holding That The Death Of

The Client Results In A Qualified Attorney-Client

Privilege In Criminal Cases. ........ Pe Es See ee eee

1. The panel’s reasoning is inconsistent with the

fundamental principles underlying the

attorney-client TI cccctticcanecisctinteesincanpiccsiciiiiiannn |

A qualified posthumous privilege in criminal

cases will deter full and candid

communications by clients. ................s-ssseessseessnsees 9

ll. THE STRINGENT PROTECTION FOR

MENTAL-IMPRESSION WORK PRODUCT

APPLIES TO THE LAWYER'S NOTES OF HIS

PRELIMINARY MEETING WITH THE CLIENT. ..=...... 16

A. A Strict Work-Product Privilege For An Attorney's

Mental Impressions Is Essential To Our System

Of Justice And Applies To The Disclosure Of

Factual Information In An Attorney's Notes That

Would Reveal His Thoughts And Judgments................ 17

B. Because The Attorney Exercises His Professional

Judgment In The Information He Elicits And

Records, A Lesser Work-Product Privilege Does

nm

Not Apply To His Initial Meeting With A Client. .......... 19

RN RET ASRS is hat APNE De a NA 20

TABLE OF AUTHORITIES

CASES

Allen, In re, 106 F.3d 582 ; .

| 18 S. Ct. 689 190) 1997), cent. denied,

win V. CIR, 125 F 2d 812 (9th Cir, 194 eoESeaseosoescecouseeeeoseseecece 19

i. 5

oar Vv. Crawfords, 70 US. (3 Wall.) te. (1865) pnmeneeesssencosces :

r oe - yers Co. v. FTC, 598 F.2d 18 (D.C. Cir 1978) S0 Cee ssccceces

u ivant Vv. Attorn ey-Genera / for Victoria © OTe ccccecasccce 19

a App. Cas. 196 (appeal taken from O.B.)..... 5

irae vy. Reinicker, 24 U.S. (11 Wheat.) 280(1826)..

Cohen Vv. Jenkintown Cab Co., 357 A2d 689 seesenecenesecesocen 4

™ (Pa. Super. Ct. 1976) 000... ccccsssess

ooter & Gell v. Hartmarx Corp., 496 U.S. 384 ( 1990) yt :

Cox v. Administrator, U.S. Steel & Camegie, 17 F.3d 1386

EPA ee

any aghaghh f

482 US. 641 (1987) e198) eve

Glover v. Ration 168 US 350 809) 77777

Grand Jury Proceedings. |

; , 473 F.

(8th Cir. 1973) eins eae

Hickman y. Taylor, 329 U.S. 495 (1947) WOOt ee eeeneeereeeeesenseseneeeseccuaces 19

Hudson v. United States, 118 S. Ct. 488 (1997)...

Jaffe v. Redmond, 116. Ck 1905 edgy 6

Jewell Vv. Holzer Hos ital F ibe bee . passim

(6th Cir. 1990 Yi mite sentation O99 F 24 1507

Ye ate ssseennannnasssscasennensnetssststsanaensesssnnecceescss... 1]

(Mass. 1990). ns eation: In re, 562 N.E.2d 69

Kalina Fletcher, 118.8. Gy $03 _—— aimee 5

nt Corp. Vv. NLRB, 530 F.2d 612 (Sth Cin) cen oreeeesesecesesceccen 18

denied, 429 U.S. 920 (1976)... “

Moran 5 Bu thine, 475 US. 10 1888) 19

Nadler v. Department of Jee 986)... ssetnstnnteeeeneeenensee

(11th Cir. rorrmindas am 799 F.20 1479

Nizon v. United Sega, Si gaan agen 19

» 778 F.2d 1269 (D.C. Ci ?

N Mo. Cir, 1992)

LRB v. Sears, Roebuck & Co., 42] US 132(1975). 7

ii

-

a ag

Petroleum Information Corp. v. Department of Interior,

Ue bl ee ©” | . ae 19

Prink v. Rockefeller Center, Inc., 398 N.E.2d 517

Ok , O 1]

Ryan v. Ryan, 642 N.E.2d 1028 (Mass. 1994) .......csceceseeseerenes 1]

Sealed Case, In re, 121 F.3d 729 (D.C. Cir. 1997) ....cccccccceees .19

Talley Industries, Inc. v. United States, 188 U.5.P.Q.

1 NEY © Io & , SaaaaRn ane ENIEEE 5

United States v. Nobles, 422 U.S. 225 (1975).....ccccccccccccseeeeneeeenes 17

United States v. Osborn, 561 F.2d 1334 (9th Cir. 1977) «0... 5

United States v. Weber Aircraft Corp., 465 U.S. 792 (1984).......... 7

Upjohn Co. v. United States, 449 U.S. 383 (1981) ........0000 passim

Vacco v. Quill, 117 S. Ct. 2293 (1997) .......ecceceseesesneneenenenenensnenens 2

Virginia Bankshares v. Sandberg, cert. granted,

495 U.S. 903 (1990), rev'd, 501 U.S. 1083 (1991)... eee ]

Walker v. City of Mesquite, 129 F.3d 831 (5th Cir. 1997)........... 15

Washington v. Glucksberg, 117 S. Ct. 2258 (1997) .......cesesesessesnen 2

STATUTES

Pt tee gd °C eee ee 19

RULES

SS nen a ee 6

Model Code of Evid. R. 209(c)(i) & emt. 6 (1942) .......ccccceeneeees 5

Proposed Fed. R. Evid. 503(c) & adv. comm. note (d)(2),

Fs ES of, 5

Proposed Fed. R. Evid. 504(a), 56 F.R.D. 183 (1972)... 11

Proposed Fed. R. Evid. 506(c), 56 F.R.D. 183 (1972)... 1

UpenlE BR. Gk, SBed (BCBG .nnnecnccccnccnsncscescsnsecscensceseescsnsesncesesnssee 5

BOOKS AND TREATISES

John Bartlett, Fammiar Quotations (16th ec. 1992)... 12

Kenne Fant, ALFreD Noset (Ruuth transl. 1993) ...................... 13

Nicholas Halasz, Nope (1959) ......0...........ccce ee se ee 13

13 Hassury’s Laws or ENGLAND (4th ed. 1975)... a

Christopher B. Mueller & Laird C. Kirkpatrick, Feperat

LP Sn nae 10

Roger K. Newman, Huco OF 7, a 13

ii

Paul R. Rice, THe ATTORNEY-CLIENT PRIVILEGE IN THE

tS | eee 5

Section of Litigation, American Bar Ass'n, THE

ATTORNEY-CLIENT PRIVILEGE AND THE WORK-

Propuct DocTRINE (3d ed. 1996) .0.........c.ccccccccceeneeeeeeeeeneeeenees 5

Alexandra K. Wigdor, THe PERSONAL Papers OF SUPREME -

ed, ee 13

John H. Wigmore, Evipence (McNaughton rev. ed.

| | ne 6,11

ARTICLES

Simon J. Frankel, The Attorney-Client Privilege After the

Death of the Client, 6 Geo. |. Lecat Ernics 45 (1992) .... 5, 14

Carl McGowan, Presidents and Their Papers, 68 Minn. L.

tn een na EE 14

Karl E. Meyer, Need a Sure Way to Settle an Argument Or

Hide a Scandal? Bum the Letters, N.Y. Times,

ali, D, DOUBT ecscncccececccveresessesierecssvensvsnsansvasoncosiuenvessesesens 14

OTHER AUTHORITIES

American Bar Ass'n, ForMAL Opinion 91 (Mar. 8, 1933) ............ 5

American Bar Ass'n, INFORMAL Opinion 1293 (June 17,

ITT secession iaaienssecanatiiadindanaienrndinnatiectatapeanansiaattiias 5, 10

NT "HUI cnssininennseshiseneetiiliacediteiadnganaiiianninsinunesnieiudinpannanindastaion 12

M. de Cervantes, Don Quixore DE LA Mancua (1605-

Ey ere ae cS Ee 12

Robert B. Fiske, Jr., REPORT OF THE INDEPENDENT

CounseL: IN RE VINCENT W. Foster, Jr. (June 30,

Vincent W. Foster, Jr., “Roads We Should Travel,”

Commencement Address at the Law School of the

University of Arkansas (May 8, 1993) ...............cecceeneeeneeerenens 15

Yh eee 12

Leonidas of Tarentum, in THE Greek ANTHOLOGY, no.

BO ay FUR ccncerescsscscccseesenetnnensnsscemnmnerneseceseninnnmantaciens 12

H. Longfellow, A PsaLm OF Lire (1839)... ccc 12

PROPOSED RESTATEMENT (THIRD) OF THE LAW

GOVERNING Lawyers (Proposed Final Draft No. 1,

EE: AUUE, GPU nscceniccnrcctnnsinclidnansoninientninningesiiintigsammintinseinensinntbnvedaeatiaian 5

7

Publilius Syrus, MAXIMS (91.4.) oo... cccccccccccscecccseseeseeeeeeeec . 12

W. Shakespeare, Kinc RicHaRD THE SECOND (1595) . 12

W. Shakespeare, OTHELLO (1604-1605)... . 12

Kenneth W. Starr, Report oF THE OFFICE OF

INDEPENDENT COUNSEL ON THE DEATH OF VINCENT

W. Foster, Jr. (1997)

INTEREST OF THE AMICI CURIAE!

The National Association of Criminal Defense Lawyers is a

non-profit corporation with a membership of more than 9,000 at-

torneys and 28,000 affiliate members throughout the United

States. Founded in 1958, NACDL seeks to promote the effective

representation of defendants in criminal cases. The attorney-client

and work-product issues in this case are central to NACDL’s

members and their clients. NACDL has appeared as amicus

curiae in several cases in this Court. See, e.g., Hudson v. United

States, 118 S. Ct. 488 (1997); Moran v. Burbine, 475 U.S. 412

(1986).

The American Corporate Counsel Association is a non-profit

national bar association for in-house corporate counsel. Since its

founding in 1982, ACCA has grown to more than 10,600 mem-

bers in approximately 4,600 corporations and other private-sector

organizations. The attorney-client and especially the work-product

issues presented in this case are of direct concern to ACCA’s

members and the clients they represent. ACCA has participated as

amicus curiae in a number of cases before this Court. See, e.g.,

Virginia Bankshares v. Sandberg, cert. granted, 495 U.S. 903

(1990), rev'd, 501 US. 1083\(1991); Frazier v. Heebe, cert.

granted, 479 U.S. 960 (1986), rev'd, 482 U.S. 641 (1987).

The National Hospice Organization is a non-profit, public-

benefit, charitable organization dedicated to meeting the unique

needs of terminally ill people and their families. Established in

1978, NHO represents approximately 2,400 hospice programs,

some 4,000 hospice professionals, and 48 state hospice organiza-

tions. 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 in this

case therefore is of particular concern to NHO, its members, and

' The parties have consented to the filing of this brief under S. Ct. R. 37.2,

and their letters of consent have been lodged with the Clerk of the Court Pursu-

ant to S. Ct. R. 37.6, amici state that counsel for a party did not author this brief

in whole or in part and that no one other than amici, their members, or their

counsel made a monetary contribution to the preparation or submission of this

brief.

those they serve. NHO has previously appeared as amicus curiae

in this Court. See, e.g., Vacco v. Quill, 117 S$. Ct. 2293 (1997);

Washington v. Glucksberg, 117 S. Ct. 2258 (1997).

ARGUMENT

A divided panel of the D.C. Circuit, over the vigorous dissent

of Judge ‘Tatel, has incorrectly decided two issues involving the at-

torney-client and work-product privileges that are of surpassing

importance to our adversarial system of justice and to the legal

profession and the clients it represents. Both of the panel’s rulings

are unprecedented and conflict with an unbroken line of deci-

sions of this and other courts over many decades. Moreover, the

issues presented are recurring ones for the legal system and arise

routinely in the practice of law. In light of the panel's error, its de-

parture from established precedent, and the continuing impor-

tance of these issues for lawyers.and clients alike, review by this

Court is warranted. See Jaffee v. Redmond, 116 S. Ct. 1923, 1927

(1996). Indeed, either issue, considered separately, would justify

the grant of certiorari; taken together, they compellingly call for

this Court's intervention to forestall the pernicious consequences

of the novel rulings below. As Judge Tatel explained, the major-

ity’s “two new holdings —one chilling client disclosure, the other

chilling lawyer note-taking — will damage the quality of legal rep-

resentation without producing any corresponding benefits to the

fact-finding process.” Pet. App. 32a—33a (Tatel, J., dissenting from

denial of rehearing in banc).

I. THE ABSOLUTE ATTORNEY-CLIENT PRIVILEGE

SURVIVES THE DEATH OF THE CLIENT.

In this case, the Independent Counsel obtained grand-jury

subpoenas for notes of a meeting between James Hamilton, a pri-

vate attorney, and his client, Vincent W. Foster, Jr., who was then

a White House official and who, nine days after the meeting,

committed suicide. It is common ground in this case that their

discussion, when it occurred, was covered by the attorney-client

privilege. Pet. App. 2a. Thus, the notes of the meeting were sub-

ject to subpoena only because the court of appeals held that the

death of the client qualifies what would otherwise be an absolute

nn ee

privilege and that an ad hoc balancing test deterraines whether the

post-death qualified privilege is outweighed by the need for the

material in the criminal investigation.

The court of appeals’ decision cannot withstand analysis.

Much of the court’s reasoning is flatly inconsistent with the settled

understanding of the attorney-client privilege. Moreover, none of

the reasons advanced by the majority remotely justifies a departure

from the established rule, endorsed by courts and legislatures

alike, that the privilege survives the death of the client.

This issue, amici stress, will arise on a frequent and even daily

basis in the legal system if the court of appeals’ decision is left

standing. Most directly, it will be presented, as here, when mate-

rial or information is sought to be compelled after the death of the

client. By itself, that is a significant and recurring issue. But the is-

sue also will present itself every time a lawyer counsels a client on

the privileged nature of their communications and a client must

decide, in light of the privilege available, whether to make a full

and candid disclosure to his (or her) lawyer of the most highly in-

criminating, embarrassing, or otherwise sensitive facts the client

possesses. As Judge Tatel aptly observed in dissent (Pet. App. 20a-

21a), the attorney no longer can provide assurance that proper at-

torney-client communications (that is, not in furtherance of a

crime or fraud) will be absolutely privileged, but instead must give

much more complex and qualified advice that the privilege ulti-

mately depends on a post-hoc and free-form balancing test that

will turn on circumstances that cannot then be foreseen. The con-

sequence of the court of appeals’ decis _n is to confront clients —

who already are facing some legal problem for which they are

seeking professional assistance — with uncertain and confusing ad-

vice about the privilege that in the end can be little more than

cold comfort. The ruling thus has an immediate and direct effect

on the everyday practice of law and the routine decisions that cli-

ents make, and it unavoidably will deter candid client disclosures

that, until now, were encouraged by the absolute attorney-client

privilege.

A An Absolute Attorney-Client Privilege Serves To

Encourage Complete And Candid Communications By

Clients, And The Common Law And Evidence Codes

Recognize That The Privilege Does Not Abate Upon

The Death Of The Client.

As this Court has recognized, “[t}he attorney-client privilege is

the oldest of the privileges for confidential communications

known to the common law.” Upjohn Co. v. United States, 449

U.S. 383, 389 (1981). The fundamental purpose of the privilege

“is to encourage full ard frank communications between attorneys

and their clients”; it “‘rests on the need for the advocate and

counselor to know all that relates to the client’s reasons for seeking

representation if the professional mission is to be carried out’” and

is essential to enable the client to be free “‘to make full disclosure

to their attorneys.’” Ibid. In this way, the privilege “‘promote|s

the] public interests in the observance of law and administration

of justice.’” Ibid. In sum, the privilege reflects both that “sound

legal advice or advocacy serves public ends,” and that “such ad-

vice or advocacy depends upon the lawyer's being fully informed

by the client * * * [which will occur only when the client is] ‘free

from the consequences or the apprehension of disclosure.’” [bid.

See also Jaffee, 116 S. Ct. at 1928 (the attorney-client privilege is

“‘rooted in the imperative need for confidence and trust,’” and

“the mere possibility of disclosure * * * [that] may cause embar-

rassment or disgrace * * * may impede development of the

confidential relationship”).

With striking uniformity, the law long has recognized that the

absolute attorney-client privilege continues after the death of the

client. As Judge Tatel demonstrated in detail below, “{s]ince at

least the mid-nineteenth century, the common law has protected

the attorney-client privilege after a client's death” (Pet. App. 17a),

and courts and legislatures consistently have adhered to that prin-

ciple. This Court has ruled that the privilege survives the client's

death,’ as have lower federal courts’ and state courts’ as well as

,

See Glover v. Patten, 165 U.S. 394, 406-408 (1897). See also Chirac v. Re-

inicker, 24 U.S. (11 Wheat.) 280, 294 (1826) (Story, J.) (“confidential communi-

English courts.’ In addition, each of the 20 state legislatures to

have addressed the issue has provided that the absolute attorney-

client privilege does not abate upon the death of the client.° Simi-

larly, the Rules of Evidence proposed by this Court in 1972 main-

tained the privilege after the client’s death,’ as have other medel

evidence codes.° And the American Bar Association and a number

of commentators likewise have endorsed this common-law rule.”

These consistent authorities convincingly establish that the privi-

cations between client and attorney, are not to be revealed at any time”); Black-

burn v. Crawfords, 70 U.S. (3 Wall.) 175, 192-194 (1865).

See, e.g., United States v. Osborn, 561 F.2d 1334, 1340 (9th Cir. 1977),

Baldwin v. CIR, 125 F.2d 812, 814 (9th Cir. 1942); see also Talley Indus., Inc. v.

United States, 188 U.S.P.Q. (BNA) 368, 371-373 (Ct. Cl. 1975) (corporation's

attorney-client privilege survives dissolution of the corporation).

* See, e.g., In re John Doe Grand Jury Investigation, 562 N.E.2d 69, 70-72

(Mass. 1990).

> See Bullivant v. Attorney-General for Victoria, 1901 App. Cas. 196, 206

(appeal taken from O.B.); 13 Hatssury’s Laws of ENGLAND para. 84 at 67 (4th

ed. 1975).

® See Pet. App. 17a (Tatel, J., dissenting).

See Proposed Fed. R. Evid. 503(c) & adv. comm. note (d)(2), 56 F.R.D.

183, 236, 240 (1972).

® See Unif. R. Evid. 502(c) (1986); Model Code of Evid. R. 209%(c)(i) & cmt.

6 (1942).

* See American Bar Ass'n, ForMAL Opinion 91 (Mar. 8, 1933);American Bar

Ass'n, INFORMAL Opinion 1293 (June 17, 1974); 8 John H. Wigmore, EvipeNcE

§ 2323 at 630-63] (McNaughton rev. ed. 1961); Simon J. Frankel, The Attorney-

Client Privilege After the Death of the Client, 6 Geo. J. Lecat Ernics 45 (1992);

Section of Litigation, American Bar Ass’n, THE ATTORNEY-CLIENT PRIVILEGE

AND THE WorK-Propuct Doctrine 234 (3d ed. 1996); Paul R. Rice, THe Ar-

TORNEY-CLIENT PRIVILEGE IN THE UNiTeED States §§ 2:5-—2:6 (1993). Even

commentators who criticize the rule recognize that it is firmly established and

that a contrary rule is not supported by judicial or legislative authority. See, e.g.,

ProposeD RESTATEMENT (THIRD) OF THE Law GOvERNING Lawyers § 127 &

emts. c & d, Reporter's Note to Comments c & d (Proposed Final Draft No. 1,

Mar. 29, 1996) (provision that attorney-client privilege survives the death of the

client; although the commentary urges an exception, it acknowledges that “[tjhe

law recognizes no exception,” that cases “routinely hold that the privilege sur-

vives,” and that “[nJo extant case authority supports the proposed good-cause ex-

ception urged in the Comment”).

;

lege continues after the client’s death under “the principles of the

common law * * * interpreted in the light of reason and experi-

ence.” Fed. R. Evid. 501; see also Jaffee, 116 S. Ct. at 1927 (provi-

sion in Proposed Federal Rules of Evidence for psychotherapist

privilege supported adoption of federal privilege as a matter of

common law under Fed. R. Evid. 501); id. at 1929 & n.1]

(uniform acceptance of psychotherapist privilege by state courts

and legislatures supported adoption of federal common-law privi-

lege under Rule 501)."°

As these authorities demonstrate, the lesson of history and ex-

perience — grounded in human nature and common sense —has

been that abrogation of the absolute attorney-client privilege upon

the death of the client would discourage the full and forthright

disclosure by the client to the attorney that the privilege is de-

signed to promote. Absent a continued privilege, clients would be

subject to “the consequences or the apprehension of disclosure”

(Hunt v. Blackbum, 128 U.S. 464, 470 (1888)) that~as the basic

theory of the privilege recognizes—chills candid and complete

communication.

The subjective freedom of the client, which it is the

purpose of the privilege to secure, * * * could not be

attained if the client understood that, * * * after the

client's death, the attorney could be compelled to dis-

close the confidences * * *. It has therefore never

been questioned * * * that the privilege continues

* * * even after the death of the client.

Wigmore, § 2323 at 630-631.

Against this background, it is clear that the unprecedented de-

cision below departs from a century of well-accepted privilege law

and thus creates a conflict that necessitates this Court's review.

10

The solitary exception is, as Judge Tatel described it (Pet. App. 29a (Tatel,

J., dissenting from denial of rehearing in banc)), “a never-cited opinion of a mid-

level Pennsylvania appellate court.” See Cohen v. Jenkintown Cab Co., 357 A.2d

689 (Pa. Super. Ct. 1976). This aberrational decision—which was not even a

criminal case —does not support the panel’s ruling in this case and does not even

begin to offset the overwhelming weight of contrary vuthority.

B. The Panel Erred In Holding That The Death Of The

Client Results In A Qualified Attorney-Client Privilege

In Criminal Cases.

1. The panel’s reasoning is inconsistent with the

fundamental principles underlying the attorney-

client privilege.

The decision below rests on a number of conclusions that are

irreconcilable with the basic and long-accepted premises of the at-

torney-client privilege. Although couched in terms of an excep-

tion to the privilege upon the death of the client, the panel’s rea-

soning is, in reality, at odds with the foundations of the privilege

itself. a

To begin with, the majority stressed that “the privilege ob-

structs the truth-finding process” and therefore must be “narrowly

construed.” Pet. App. 6a. However, the consistent judgment of his-

tory and experience has been that the privilege is essential to the

sound administration of justice and must be applied to accom-

plish its paramount purposes. See page 4, supra; Jaffee, 116 S. Ct.

at 1928. Moreover, contrary to the panel’s reasoning, this Court

has recognized that complete and candid disclosures are unlikely

to occur in the first place without the protections of the privilege,

and therefore “[a}pplication of the attorney-client privilege to

communications such as those involved here * * * puts the adver-

sary in no worse position than if the communications had never

taken place.” Upjohn, 449 U.S. at 395; see also Jaffee, 116 S. Ct.

at 1929 (“[TTthe likely evidentiary benefit that would result from

denial of the privilege is modest” because “[w]ithout a privilege,

much of the desirable evidence to which litigants * * * seek access

* * * is unlikely to come into being. This unspoken ‘evidence’ will

therefore serve no greater truth-seeking function than if it had

been spoken and privileged”); id. at 1928; United States v. Weber

Aircraft Corp., 465 U.S. 792, 803 n.23 (1984).

In addition, the majority suggested that “[i]n the sort of high-

adrenalin situation likely to provoke consultation with counsel,”

the client has adequate incentives to make full disclosure to his

lawyer even if the communication is not covered by an absolute

attorney-client privilege. Pet. App. 7a. This Court, however, has

squarely rejected such reasoning: “the common law has recog-

nized the value of the privilege in further facilitating communica-

tions” notwithstanding that “an individual trying to comply with

the law or faced with a legal problem * * * has strong incentive to

disclose information to his lawyer.” Upjohn, 449 U.S. at 393 n.2.

The majority also reasoned that the privilege should not con-

tinue after the client’s death because the client was no longer

available as an alternative source of the information. Pet. App. 7a.

But the possibility of obtaining the desired information from a

source other than the attorney has never been the basis for the

privilege. See Pet. App. 25a (Tatel, J., dissenting) (discussing nu-

merous situations where attorney-client privilege would apply

even though information was not otherwise available). Moreover,

the possibility of eliciting the information directly from the client

during his lifetime is considerably more theoretical than real;

while it is conceivable that the client in a criminal investigation

would waive the attorney-client privilege (which also could be

done by the representative of the client after the client’s death), or

would relinquish his Fifth Amendment right against self-

incrimination through waiver or a grant of immunity from the

prosecutor, such circumstances are rare and the prospect of their

occurrence remote. In the end, the attorney-client privilege rests

not on the improbable assumption that the evidence sought from

the lawyer will be available from the client, but on the twin prin-

ciples that such evidence is unlikely to come into existence at all

absent the privilege (see page 7, supra) and that any marginal un-

availability of evidence is a price worth paying for the overriding

benefits of the privilege to the legal system (see page +, supra).

Finally, the majority concluded that the post-death privilege

in criminal cases is governed by “a case-by-case balancing” to de-

termine whether the “relative importance [of the communications

sought] is substantial” because they “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. 8a, 10a. Once again, this Court has

refused to adopt an ad hoc balancing test for the attorney-client

privilege, holding that such an amorphous standard is antithetical

to the certainty necessary for an effective privilege:

{I]f the purpose of the attorney-client privilege is to be

served, the attorney and client must be able to predict

with some degree of certainty whether particular dis-

cussions will be protected. An uncertain privilege, or

one which purports to be certain but results in widely

varying applications by the courts, is little better than

no privilege at all.

Upjohn, 449 U.S. at 393; see also Jaffee, 116 S. Ct. at 1932 (reject-

ing balancing test for psychotherapist privilege because “[|m aking

the promise of confidentiality contingent upon a trial judge’s later

evaluation of the relative importance of the patient's interest in

privacy and the evidentiary need for disclosure would eviscerate

the effectiveness of the privilege”). Unavoidably, the outcome of a

balancing test that turns on such factors as the relative importance

of the evidence to the individual case and the availability of the

evidence from other sources cannot be predicted ex ante at the

time of the attorney-client communication and indeed can lead to

inconsistent decisions by courts in similar circumstances. See Up-

john, 449 U.S. at 393. Accordingly, contrary to the panel’s blithe

assurance that its case-by-case balancing approach “produces none

of the murkiness that persuaded the [Supreme] Court in Upjohn

and Jaffee to reject the limitations proposed here” (Pet. App. 10a),

it is clear that the decision below creates exactly such murkiness

and is incompatible with the long-recognized need for an absolute

rather than a qualified privilege to safeguard attorney-client com-

munications.

2. A qualified posthumous privilege in criminal

cases will deter full and candid communications

by clients.

Central to the majority's holding was the belief that a “discrete

exception” to the absolute attorney-client privilege that created a

“posthumous limitation of the privilege” would not deter full and

candid disclosures by clients to their attorneys. Pet. App. 8a. In

particular, in the majority's view, clients would not be sufficiently

concerned about the harm to their reputations from the posthu-

mous revelation of incriminating or embarrassing information that

they would be discouraged from imperting such information to

10

their lawyers in the first place. According to the majority, “we

would expect the restriction’s chilling effect to fall somewhere be.

tween modest and nil.” Id. at 7a. This is a completely unrealistic

assessment that is belied by the law of privilege and the lessons of

human experience.

First of all, the majority entirely ignored the client’s concern

over the effects of the posthumous disclosure of incriminating or

embarrassing information about himself on his family, friends,

and colleagues. Needless to say, such disclosures can be devastat-

ing to survivors. So, too, the panel overlooked that a client’s com-

munications can—and often do—contain incriminating or em-

barrassing information about others, including his loved ones and

associates. The disclosure of such information to a prosecutor after

the client’s death can expose these third parties not only to dis-

grace but to criminal prosecution. And, in addition to other sanc-

tions, such proceedings can have enormous financial implications

for his survivors due to fines, restitution, forfeiture, and even at-

torneys’ fees. These consequences alone could well discourage a

client’s candid discussions with his lawyer in the absence of an ab-

solute posthumous privilege. See Pet. App. 24a (Tatel, J., dissent-

ing); American Bar Ass’n, INFORMAL OpiNiON 1293 (June 17,

1974) (posthumous disclosure of confidential information con-

veyed by the client “could lead to numerous serious problems in-

volving the client's representatives, surviving relatives and business

associates” and “would be in contravention of the very purpose of

the privilege”); Christopher B. Mueller & Laird C. Kirkpatrick,

FEDERAL EvIDENCE § 199 at 380 (2d ed. 1994) (“[c]learly a client

is concerned not only about himself but about his larger human

situation that includes spouses, parents, children, siblings, and ex-

tended family, friends, and business associates”)."'

It is, of course, irrelevant, that such statements concerning others may not

be protected by the client's Fifth Amendment privilege against self-

incrimination. The attorney-client privilege is broader than the self-

incrimination privilege, and the relevant issue is whether the client's concerns

about family and friends would affect his voluntary communications with his at-

torney absent a continuation of the absolute privilege after his death.

Beyond that, the panel plainly was mistaken in minimizing

people’s concern about their posthumous reputations and the de-

terrent effect that can have on frankness and truthfulness. As dis-

cussed above, it long has been recognized that the absolute attor-

ney-client privilege survives the client's death and that this

continuing privilege is necessary to ensure candid communica-

tions between the client and his lawyer during the client's life.

The panel's conclusion flies in the face of the accumulated wis-

dom embodied in this rule. By itself, this is enough to cast the

gravest doubt on the decision below.

What is more, other absolute privileges follow exactly the

same rule that the privilege survives the death of the declarant

who holds the privilege. Thus, the priest-penitent privilege," the

doctor-patient privilege,’ the psychotherapist-patient privilege,"

and the spousal privilege for confidential communications'’ all

continue unabated after the death of the speaker. This unanimity

in privilege law—which the panel did not consider, let alone dis-

tinguish — provides telling confirmation of the need for the post-

death continuation of an absolute privilege in order to encourage

the inter vivos communication of highly sensitive information.

In addition to the law of privilege, numerous fields of human

endeavor attest to the importance the living attach to their reputa-

tions after death. From time immemorial, literature, philosophy,

religion, and other disciplines have recognized this human char-

acteristic. For example, the Bible states:

All these were honored in their generations, and

were the glory of their times.

"2 See Proposed Fed. R. Evid. 506(c) & adv. comm. note (c), 56 F.R.D. at 247,

249; Ryan v. Ryan, 642 N.E.2d 1028, 1034 (Mass. 1994).

'’ See Jewell v. Holzer Hosp. Found., 899 F.2d 1507, 1513-1514 (6th Cir.

1990); Prink v. Rockefeller Ctr., Inc., 398 N.E.2d 517, 520 (N.Y. 1979), Wigmore,

§ 2387 at 853 (“The object of the privilege is to secure subjectively the patient's

freedom from apprehension of disclosure. It is therefore to be preserved even af-

ter the death of the patient”).

'* See Proposed Fed. R. Evid. 504(a), 56 F.R.D. at 241.

'' See Prink, 398 N.E.2d at 520; Wigmore, § 2341 at 673.

12

There be of them, that have left a name behind

them, that their praises might be reported.

And some there be, which have no memorial; who

had perished, as though they had never been; and are

become as though they had never been born; and

their children after them. '*

Writers such as Longfellow likewise have recognized the value

people place on their reputations after death:

Lives of great men all remind us

We can make our lives sublime.

And, departing, leave behind us

Footprints on the sands of time."

Thus, in the words of S e: “Mine honor is my life; both

grow in one; Take honor from me and my life is done.”

‘© Tue Bisie: Apocrypha, at 44:7-9, quoted in John Bartlett, Fammiar Quo-

TATIONS 32:14 (16th ed. 1992). See also id., Ecclesiastes 7:1, quoted in Bartlett at

24:6 (“[a] good name is better than precious ointment”); Leonidas of Tarentum,

in THe Greek ANTHOLOGY, no. 189 (Jay ed. 1973), quoted in Bartlett at 83:1

(“Far from Italy, far from my native Tarentum | lie; and this is the worst of it—

worse than death. An exile’s life is no life. But the Muses loved me. For my suf-

fering they gave me a honeyed gift: My name survives me. Thanks to the sweet

muses, Leonidas will echo throughout all time”); Juvenal, Saties, VIII, /. 83,

quoted in Bartlett at 109-6 (“Count it the greatest sin to prefer life to honor, and

for the sake of living to lose what makes life worth having”); Publilius Syrus,

Maxims 108, 265, quoted in Bartlett at 99:2, 9 (“A good reputation is more vali-

able than money”; “What is left when honor is lost?”).

" _H. Longfellow, A Psa or Lire st. 7, quoted in Bartlett at 440: 17,

‘© W. Shakespeare, Kinc RicHarp THE Seconp, act I, sc. i., 1. 182, quoted in

Bartlett 170:26. See also id, 1. 177, quoted in Bartlett at 170:25. (“[t}he purest

treasure mortal times afford {i]s spotless reputation”); W. Shakespeare, OTHELLO,

I, iti, 264, quoted in Bartlett at 206:20 (“Reputation, reputation, reputation! O! |

have lost my reputation. | have lost the immortal part of myself, and what re-

mains is bestial”); id., Ill, iii, 155, quoted in Bartlett at 206:30 (“Good name in

man and woman, dear my lord, [{i}s the immediate jewel of their souls; Who

steals my purse steals trash; ‘tis something, nothing; “Twas mine, ‘tis his, and has

been slave to thousands; But he that filches from me my good name [rjobs me of

that which not enriches him, [a}nd makes me poor indeed”); M. de Cervantes,

Don Quixore pe La Mancua, pt. I, bk. IV, ch. 1, p. 226, quoted in Bartlett at

150:4 (“My honor is dearer to me than my life”).

~~

13

This natural human concern manifests itself in numerous

ways. For example, Judge Tatel noted the many acts of philan-

thropy that indicate “that human beings care deeply about how

posterity will view them.” Pet. App. 22a~23a (Tatel, J., dissenting).

A particularly vivid example is that of Alfred Nobel, the inventor

of dynamite and founder of the Nobel Prize. Upon the premature

report of his death, Nobel was criticized as a “‘merchant of death’

who had built a fortune by discovering new ways to ‘mutilate and

kill.”” This

pained him so much he never forgot it. Indeed, he

became so obsessed with his posthumous reputation

that he rewrote his last will, bequeathing most of his

fortune to a cause upon which no future obituary

writer would be able to cast aspersions.

Kenne Fant, ALrrep Nose 207 (Ruuth transl. 1993). See also

Nicholas Halasz, Nope 3-4 (1959).

Similarly, concerns about posterity and the post-death revela-

tion of private information are evidenced in people’s treatment of

historical materials. Readers of autobiographies and memoirs are

familiar with the common focus of authors on their enduring

reputations and the judgment of history. What is more, such con-

cerns have led numerous public officials to destroy their papers in

anticipation of their deaths. For example, Justice Black, in what

was termed “Operation Frustrate the Historians,” directed on the

eve of his death that his Court papers be destroyed.'* A number of

other justices also have destroyed their papers,” as have several

'* See Roger K. Newman, Huco BLack 621-622 (1994); see also Alexandra K.

Wigdor, THe Persona Papers or Supreme Court Justices 48 (1986) (Justice

Black ordered the destruction of his conference notes because of the “‘fear that

publishing them might inhibit the free exchange of ideas’” and because “ ‘reports

by one Justice of another's conduct in the heat of a difference might unfairly and

inaccurately reflect history’”); id. at 3~

» See Wigdor at 4 (“until recently, judges have tended to destroy their work

ing papers”). Chief Justice White and Justices Cardozo, McKenna, Minton,

Peckham, Pitney, and Roberts destroyed their papers, and the papers of Justices

Lurton and Wayne were destroyed by their survivors. Id. at 25 n.50, 35, 73, 140,

141, 154, 168, 169, 175, 219, 221.

14

presidents." And many prominent private citizens as well have

done the same thing.” Although human motivations are complex

and sometimes difficult to ascertain, this experience is sufficient to

belie the facile assumption of the majority below that the post-

death disclosure of incriminating or embarrassing information

would have little or no effect in discouraging candid attorney-

client discussions.

As the foregoing demonstrates, it is a normal human trait to be

concerned about one’s reputation after death, and amici submit

that people in general would be deterred from candid attorney-

client communications by the knowledge that, under the panel’s

decision, the familiar privilege does not in fact protect against

highly sensitive post-death disclosures. This deterrent effect would

be especially great where, as apparently was the case here, the cli-

ent consults the lawyer in contemplation of death. See Pet. App.

23a, 24a-25a (Tatel, J., dissenting); cf. Jaffee, 116 S. Ct. at 1929 &

n.10. When death is expected or imminent— whether from ad-

vanced age, illness, suicide, or other cause —the client under-

standably is most likely to have in mind the way he will be re-

membered by his family, friends, business associates, and

community in general. It is fanciful to say, as the panel did, that

he would be unconcerned about his post-death reputation and

undeterred by the prospect of disclosure of attorney-client com-

munications. See Pet. App. 5a (“‘[flew clients are much con-

cerned with what will happen sometime after the death that every-

one expects but few anticipate in an immediate or definite

sense’”). While the privilege is not limited to this situation, these

“1 See Carl McGowan, Presidents and Their Papers, 68 Munn. L. Rev. 409,

412-413 (1983); Nixon v. United States, 978 F.2d 1269, 1279-1280, 1287-1297

(D.C. Cir. 1992).

“See Frankel, 6 Geo. J. Lecat Eriics at 62 n.86 (*‘{clontemplating their ul-

timate exits, Henry James, Walt Whitman, Charles Dickens and many others put

their correspondence and private papers in the fire out of fear that some biogra-

pher might get hold of them’”); Karl E. Meyer, Need a Sure Way to Settle an Ar-

gument Or Hide a Scandal? Burn the Letters. N.Y. Times, Feb. 9, 1998, at Al7.

A ED eS o

15

circumstances make plain the error in the court of appeals’ rea-

soning.”

Similarly, concern about post-death reputation is likely to be

particularly significant where the client's professional life was

founded on his good name. Here, for example, the client was

himself a lawyer and, as such, his “professional reputation *

|was his] most im t and valuable asset.” Walker v. City of

Mesquite, 129 F.3d 831, 832 (5th Cir. 1997), see also Cooter &

Gell v. Hartmarx Corp., 496 U.S. 384, 413 (1990) (Stevens, J.,

concurring in part) (“most lawyers are wise enough to know that

their most precious asset is their professional reputation”). In fact,

it is painfully clear that the client in this case placed the highest

value on his reputation at the bar and in his community. It thus

blinks reality to sweep aside, as the majority below did, the con-

cem of clients for their reputations after death.

. district court emphasized (Pet. App. 41a), “one of the first no-

IB ap ag etc Privileged.” ow id. at 25a ai

dissenting) (representation by counsel that “‘I am totally certain * * * i

Sd nat eeaeaih ih, Gentes tach ous cuanumation enn 0 gebciegyd cxmmonaiion,

we would not have had the conversation and there would be no notes that are the

subject of the situation today’ ”). }

* In a commencement address to his law school alma mater shortly before his

death, he observed the following: ee ,

The reputation you develop for intellectual ical integrity

will be your greatest asset or your worst enemy. * * * I cannot make this

point to you too strongly. There is no victory, no advantage, no fee, no

favor which is worth even a blemish on your reputation for intellect

and integrity. * * * Dents to the reputation in the legal profession are

irreparable.

Vincent W. Foster, Jr., “Roads We Should Travel,” Commencement Address at

the Law School of the University of Arkansas (May 8, 1993), reprinted in Robert

B. Fiske, Jr., REPORT OF THE INDEPENDENT COUNSEL: IN RE VINCENT W. Fos-

TER, Jx. (June 30, 1994), app. 7. Likewise, in a note written around the time of

his death, he expressed his deep concern that “in Washington * ruining peo-

ple is considered sport.” Id., app. 5. Based on this and other evidence, the Fiske

Report concluded that “[hjis professional reputation was of paramount impor-

tance to him.” Id. at 8. See also Kenneth W. Starr, Report oF THE OFrice OF

INDEPENDENT COUNSEL ON THE DeaTH oF Vincent W. Foster, Jr. 98 (1997)

(his “‘public persona as a man of integrity, honesty, and unimpeachable reputa-

tion was of utmost importance’).

16

il. THE STRINGENT PROTECTION FOR MENTAL-

IMPRESSION WORK PRODUCT APPLIES TO THE

LAWYER’S NOTES OF HIS PRELIMINARY MEETING

WITH THE CLIENT.

The majority below also held that the lawyer's notes of his

meeting with his client were not protected by the attorney work-

product privilege. The panel reasoned that factual materials con-

tained in the lawyer's notes did not reflect the lawyer’s mental im-

pressions, thought processes, or strategies because “the interview

was a preliminary one initiated by the client” and thus “the lawyer

ha{d) not sharply focused or weeded the materials.” Pet. App. 13a,

14a. Accordingly, it held that disclosure of factual materials in the

subpoenaed notes was governed by the relatively lax work-product

standard for purely factual materials—which “merely shifts the

standard presumption in favor of discovery, so that [such mates:-

als] are discoverable where the person seeking discovery * * *

[makes] a showing of ‘substantial need’ and ‘the inability to obtain

the substantial equivalent of the information . . . from other

sources without “undue hardship””” (id. at | la—~12a)—rather than

by the stringent standard for mental-impression work product.

The majority’s decision was patently erroneous and reflects a

wholly unrealistic view of the responsibility and functioning of the

legal profession. Moreover, it conflicts with decisions of other

courts that have recognized that the disclosure of factual materials

can reveal an attorney's mental processes and therefore is subject

to the most stringent work-product standard. A lawyer's notes of a

meeting with a client that otherwise fall within the safeguards for

mental-impression work product, as here, do not lose that protec-

tion simply because the meeting was a preliminary one requested

by the client.

Unlike the attorney-client issue discussed above, the work-

product question is not limited to situations in which the client

has died. Nor is it limited to criminal cases but applies to civil liti-

gation as well. Furthermore, preliminary client meetings occur

across the country on a daily basis for lawyers of ail kinds— private

practitioners, in-house counsel, and even government attorneys.

The decision below will have an immediate and detrimental ef-

fect on this day-to-day practice of law; just as the panel’s attorney-

17

client decision will deter clients from candid communications

with their lawyers, so, too, its work-product decision will deter

lawyers from “taking notes at early, critical meetings with clients,

which “[nJot only will * * * damage the ability of lawyers to repre-

sent their clients but in the end [will mean that] there will be no

notes [to discover].” Pet. App. 31a (Tatel, J., dissenting from de-

nial of rehearing in banc). Finally, the panel’s ruling will breed a

disruptive and wasteful generation of work-product litigation as

lawyers and courts struggle to determine what is meant by such

elastic and undefined terms as a “preliminary” meeting or a

“focus[ing] or weed[ing]” of the facts. In these circumstances, fur-

ther review by this Court is called for. See Pet. App. 37a (district

court’s observation that the work-product question is the “most

important issue” raised in this case).

A A Strict Work-Product Privilege For An Attorney's

Mental Impressions Is Essential To Our System Of

Justice And Applies To The Disclosure Of Factual

Information In An Attorney’s Notes That Would Reveal

His Thoughts And Judgments.

The work-product privilege recognizes that “it is essential that

a lawyer work with a certain degree of privacy, free from unneces-

sary intrusion by opposing parties and their counsel. Proper prepa-

ration of a client’s case demands that he assemble information, sift

what he considers to be the relevant from the — _— a

re his legal theories and plan his strategy without undue an

owe a —— v. Taylor, 329 U.S. 495, 510-511

(1947). Without such a doctrine, “[t}he effect on the legal profes-

sion would be demoralizing. And the interests of the clients and

the cause of justice would be poorly served.” Id. at 511. In particu-

lar, absent work-product protection, “much of what is now put

down in writing would remain unwritten.” Ibid. The work-product

“doctrine is an intensely practical one, grounded in the realities of

litigation in our adversary system.” United States v. Nobles, 422

U.S. 225, 238 (1975).

As this Court summarized in es the 6g we"

trine imposes a stringent standard of protection for the men

sooatens of eiitinien, Uae courts have adopted an absolute rule

18

that “no showing” can overcome the privilege for such materials;

other courts, while “declining to adopt an absolute rule,” nonethe-

less have held that “such material is entitled to special protection”

and is discoverable “‘only in a rare situation.’” 449 U.S. at 401.2

By contrast, as the panel below observed, factual information is

subject to a less stringent balancing standard that takes account of

the need for the information and its availability from other

sources.

Notwithstanding this general division between mental impres-

sions and facts, it is clear that the disclosure of factual materials in

a lawyer's notes can reveal his mental impressions. For example,

the factual information that a lawyer elicits from the client as

helpful (or harmful) readily provides an open window into the

lawyer's strategy and his judgments about the strengths and weak-

nesses of the case. See Hickman, 329 U.S. at 511 (“[p}roper prepa-

ration of a client's case demands that [the lawyer] assemble infor-

mation”); Upjohn, 449 U.S. at 391 (“‘a lawyer should be fully

informed of all the facts of the matter he is handling’”) (quoting

ABA CobE OF PROFESSIONAL RESPONSIBILITY). In addition, the

information the lawyer distills and chooses to memorialize from

all that the client says also exposes his thought processes. See Up-

john, 449 U.S. at 399-400 (attorney's notes reflect “‘what he saw

fit to write down regarding witnesses’ remarks’” and “‘would be

his (the attorney's] language, permeated with his inferences’ ”); id.

at 391 (“"[i}t is for the lawyer in the exercise of his independent

professional judgment to separate the relevant and important from

the irrelevant and unimportant”) (quoting ABA CopE oF PRo-

FESSIONAL RESPONSIBILITY); Hickman, 329 U-S. at 51] (attorney

must “sift what he considers to be the relevant from the irrelevant

facts”); see also Kalina v. Fletcher, 118 S. Ct. 502, 510 (1997)

(“the selection of the particular facts to include in the certification

to provide the evidentiary support for the finding of probable

cause required the exercise of the judgment of the advocate”).

In light of these practical realities, this Court has held that

“[florcing an attorney to disclose notes and memoranda of wit-

In Upjohn, the Court found it unnecessary to resolve which of these two

strict standards applies to mental-impression work product. 449 U.S. at 401-402.

ee ee ee

19

nesses’ oral statements is particularly disfavored because it tends to

reveal the attorney's mental processes.” Upjohn, 449 U.S. at 399.

Consistent with Upjohn, a number of courts of appeals have rec-

ognized that the compelled disclosure of factual information in an

attorney's notes that will divulge his mental processes is subject to

the stringent work-product standard of absolute or near-absolute

protection. See, e.g., In re Allen, 106 F.3d 582, 607-608 (4th Cir.

1997), cert. denied, 118 S. Ct. 689 (1998); Cox v. Administrator,

U.S. Steel & Camegie, 17 F.3d 1386, 1422 (11th Cir. 1994), cert.

denied, 513 U.S. 1110 (1995); In re Grand Jury Proceedings, 473

F.2d 840, 841-842, 848 (8th Cir. 1973). By instead applying the

much less strict standard of need and alternative availability that

relates to purely factual materials, the decision below is both erro-

neous and a departure from the law of other circuits.

, ause The Attorney Exercises His Professional

: ee scene In The var seni He Elicits And Records,

A Lesser Work-Product Privilege Does Not Apply To

His Initial Meeting With A Client.

Contrary to the decision below, a lesser work-product standard

does not apply here simply because this was a “preliminary

[meeting] initiated by the client.” Pet. App. 13a. Indeed, after in

camera review (id. at 39a), the district court determined that the

notes “‘reflect the mental impressions’” of the attorney. Id. at | 2a.

Even in a “preliminary” meeting, and no less in one “initiated

by the client,” the lawyer brings to bear his professional judgment

and experience in representing his client in anticipation of litiga-

tion. See Pet: App. 30a-31a (Tatel, J., dissenting from denial of

rehearing in banc). Although the discussion may be, as the panel

26 Similarly, in applying the work-product and deliberative-process doctrines

ssp kent Sof the alr Information Act, 5 U.S.C. § 552(b)(5),

courts have held that otherwise disclosable facts that reveal protected thought

processes or deliberations are exempt from disclosure. See, ¢.g., NLRB v. Sears,

Roebuck & Co., 421 U.S. 132, 154 (1975); EPA v. Mink, 410 U.S. 73, 91 (1973),

In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997); Petroleum Information

Corp. v. Department of Interior, 976 F.2d 1429, 1434-1436 (D.C. Cir. —

Nadler v. Department of Justice, 955 F.2d 1479, 1491-1492 (11th Cir. 1992);

Bristol-Myers Co. v. FTC, 598 F.2d 18, 29-30 n.23 (D.C. Cir. 1978); Kent Corp.

v. NLRB, 530 F.2d 612, 624 (5th Cir.), cert. denied, 429 U.S. 920 (1976).

20

suggested, “a fairly wide-ranging discourse from the client” (id. at

13a), that is not in any way inconsistent with the lawyer's profes-

sional efforts to elicit the information —pro and con—that he con-

siders significant in formulating his strategy and planning future

steps. Nor is the need for a “wide-ranging” discussion inconsistent

with the lawyer's exercise of professional judgment as reflected in

his decisions to include some but not other information in his

notes, his choice of language to record the information, and his

interlineated or marginal comments and questions that accom-

pany the information. In this case, for instance, the lawyer—a

highly experienced attorney in criminal cases—took only three

pages of notes during a two-hour interview, thereby exercising

considerable professional judgment as to what to write down, and

he underlined and placed check marks and question marks by cer-

tain passages that he believed important for any number of possi-

ble reasons or future uses. See id. at 31a (Tatel, J., dissenting from

denial of rehearing in banc). Moreover, the record establishes (id.

at 40a), as would be expected, that the attorney in fact prepared

for the initial meeting with the client by reviewing materials and

making notes, and thus he brought not only his experience but

also his own information, questions, and legal opinions— however

tentative or fragmentary —to the meeting.

In short, to say, as the panel did, that lawyers do not “sharply

focus| | or weed| |” the facts at a “preliminary” client meeting in

order to facilitate a “wide-ranging” discussion (Pet. App. 14a, 13a)

is simply out of touch with the experience of practicing members

of the bar. Even at an initial conference, the lawyer is exercising

his professional judgment in both the information he elicits and

the information he takes down. This process of obtaining and re-

cording information is at the heart of the work-product privilege

and is entitled to the most stringent protections.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

21

Of Counsel: Mark I. Levy

Lisa B. Kemler Counsel of Record

Zwerling & Kemler, P.C. Timothy K. Armstrong

108 North Alfred Street Jamison B. Taylor

Alexandria, VA 22320 John F. Stanton

Counsel for National HOWREY & SIMON 7

Association of Criminal 1299 Pennsylvania Ave., N.W.

Defense Lawyers Washington, D.C. 20004

. (202) 783-0800

Steven Alan Bennett eS

American Corporate Counsel Counsel for Amici Curiae

Association

1225 Connecticut Ave., N.W.

Washington, D.C. 20036

Counsel for American Corporate

Couuicel Association

Ann Morgan Vickery

Hogan & Hartson, L.L.P.

555 13th Street, N.W.

Washington, D.C. 20004

Counsel for National Hospice

Organization

Fesruary 1998