Petitioners Brief — Swidler & Berlin v. United States

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No. 97-1192

In THE

Supreme Coot of the United States

OCTOBER TERM, 1997

SWIDLER & BERLIN and JAMES HAMILTON,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF FOR PETITIONERS

male JAMES oe .

SWIDLEeR & BERLIN, CHARTERED

3000 K Street, N.W., Suite 300

Washington, D.C. 20007

(202) 424-7500

Counsel for Petitioners

Swidler & Berlin and

James Hamilton

* Counsel of Record

WILSON - Eras Printinc Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

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. ry

QUESTIONS PRESENTED

1. Whether, when a client dies, the attorney-client

privilege in a criminal proceeding is no longer absolute,

but is subject to a balancing test that requires the attorney

to produce evidence of privileged communications with

the client if they “bear on a significant aspect” of the case

“as to which there is a scarcity of reliable evidence.”

2. Whether, as a matter of law, an attorney’s hand-

written notes taken during an initial interview with a client

do not receive the virtually absolute work product protec-

tion otherwise afforded to an attorney’s “mental impres-

sions,” because at this stage the lawyer “has not sharply

focused or weeded the materials” and exercised profes-

sional judgment as to what to record.

PARTIES TO THE PROCEEDING

an ; il.

The petitioners are Swidler & Berlin and James Hami

ton. The parties to the proceeding in the Court of Ap-

peals were Swidler & Berlin, James Hamilton and the

United States of America.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED 2....0.0.000.....0.ccccccececccceccscoeeees i

PARTIES TO THE PROCEEDING... ii

TABLE OF AUTHORITIES .0...00...........cccccccccccccceccsc---ce. iv

EERE TO. Raabe 1

a has aa 2

RECESS ee Oe ee a 2

EE EERIE Aer Ne SORE ER PPLE TD 2

SUMMARY OF ARGUMENT... 7

|, ieeiatalaniialsiniiti Neniisiesinlie siebiebaiieas ~ 10

I. THE PRIVILEGE PROTECTING COMMUNI-

CATIONS BETWEEN CLIENT AND ATTOR-

NEY SURVIVES THE CLIENT’S DEATH... 10

Il. ATTORNEY NOTES TAKEN AT AN INI-

TIAL CLIENT INTERVIEW ARE ENTITLED

TO THE VIRTUALLY ABSOLUTE WORK

PRODUCT PROTECTION AFFORDED AN

ATTORNEY’S MENTAL IMPRESSIONS... 30

EL AE I NT RT 39

(iii)

TABLE OF AUTHORITIES

CASES Page

In re Allen, 106 F.3d 582 rehearing in bane de-

nied, 119 F.3d 1129 (4th Cir. 1997), cert. denied,

I a“ aS EE —————— Eee 13, 32, 33

Anderson v. Searles, 107 A. 429 (N.J. 1919) -........ 20

Arizona v. Gause, 489 P.2d 880 (Ariz. 1971), va-

cated on other grounds, 409 U.S. 815 (1972) ...... 29

Arizona v. Macumber, 544 P.2d 1084 (Ariz. 1976),

cert. denied, 439 U.S. 1006 (1978) ...................... 19, 29

Bailey v. Chicago, Burlington & Quincy R.R. Co.,

179 N.W.2d 560 (Iowa 1970) ..............................-. 19

Baldwin v. Commissioner of Internal Revenue, 125

F.2d 812 (Sth Cir. 1942) ~.................---00-000--0---00+- 19

Bennis v. Michigan, 516 U.S. 442 (1996) ................ 25

Branzburg v. Hayes, 408 U.S. 665 (1972) -.............. 12

Clark v. Second Judicial District Court, 692 P.2d

| 20

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

Beper. Ct. 1GFG) .......-..-200---ececceeseveensorenerorsnsensnsenees 20

Colonial Gas Co. v. Aetna Casualty & Surety Co.,

144 F.R.D. 600 (D. Mass. 1992) .......................... 20

Cooper v. Oklahoma, 661 P.2d 905 (Okla. Crim.

App. 1968) ......-.-----.-0-0--ere-n-nseneneeceero-nssenenorerensnsees 19, 23, 29

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

(11th Cir.), modified on other grounds, 30 F.3d

1347 (11th Cir.), cert. denied, 513 U.S. 1110

| ee $2, 33

Curran v. Pasek, 886 P.2d 272 (Wyo. 1994) ......... 20

Davis v. Alaska, 415 U.S. 308 (1974) ... = 28

De Loach v. Myers, 109 S.E.2d 777 (Ga. 1959) As 19

District Attorney v. Magraw, 628 N.E.2d 24 (Mass.

ee 29

Dizson v. Quarles, 627 F. Supp. 50 (E.D. Mich.),

affd mem., 781 F.2d 534 (6th Cir. 1985), cert.

denied, 479 U.S. 985 (1986) ..........-...----eeeeeeee 20

Doyle v. Reeves, 152 A. 882 (Conn. 1931) ............... 19

Estate of Voelker, 396 N.E.2d 398 (Ind. Ct. App.

| 19

Fisher v. United States, 425 U.S. 391 (1976) ........ 12

Foz v. Spears, 93 S.W. 560 (Ark. 1906) ................ 19

TABLE OF AUTHORITIES—Continued

Georgia International Life Insurance Co. v. Boney, oost

228 S.E.2d 731 (Ga. Ct. App. 1976) iidiaas 20

Glover v. Patten, 165 U.S. 394 (1897)... sis 27

Gordon v. Superior Court, 65 Cal. Rptr. 2d 58 (Cal.

fF RINE RS Se i ae 14

In re Grand Jury Proceedings, 478 F.2d 840

| CST AO ee eee ' ret 33

In re Grand Jury Investigation, 412 F. Supp.

(E.D. Pa. 1976) ms

SOOT SESH HH SESOS OS SOS SESH SH SE SSS SCO ESOS SOS See eeee

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

a 2 Pe a ees

Hickman —

v. Taylor, 329 U.S. 495 (1947) _. ..passim

Hitt v. Stephens, 675 N.E.2d 275 (Tl. App. Ct),

appeal denied, 679 N.E.2d 380 (Ill. 1997) 19

a Redmond, 518 U.S. 1, 116 S. Ct. 1928

Jewell 0. elocr Meeplial Poundaiion ua.

1507 (6th Cir. 1990)

In re John Doe Corp., 675 F.2d 482 (2d Cir. 1982). 33

In re a John Doe Grand Jury Investigation, 562

N.E.2d 69 (Mass. 1990). 19, 28

Kujawa v. Manhattan National Life Insurance Co.,

541 So. 2d 1168 (Fla. 1989) . 14

Lennox v. Anderson, 1 N.W.2d 912, (Neb.) modi-

fied on other grounds, 3 We 665 (ee

ET ehnstibecinitieliesiaitidin ett hat 20

— Koehr, 844 S.W.2d 583 (Mo. Ct. App.

Lorimer v. Lorimer, 83 N.W. 609 (Mich. 1900)... >

Mayberry v. Indiana, 670 N.E.2d 1262 (Ind.

Se Se ee ee eee ae 19, 29

McCaffrey v. Estate of Brennan, 683 SW2d 264

a 20

Merrill v. William Ward Insurance Co., 622 N.E.2d

743 (Ohio Ct. App. 1998)... 20

Miller v. Pierce, 361 S.W.2d 623 (Tex. Civ. App.

RRNA RE a: RS a 20

Morris v. Cain, 1 So. 797 (La. 1887) 19

TABLE OF AUTHORITIES—Continued

Page

National Security Fire & Casualty Co. v. Dunn,

705 So.2d 605 (Fla. Dist. Ct. App. 1997) ............. 14

Palermo v. United States, 360 U.S. 343 (1959)...... 34, 35

Pennsylvania v. Ritchie, 480 U.S. 39 (1987) ........... 28

People v. Modzelewski, 611 N.Y.S.2d 22 (N.Y. App.

YS 19, 29

People v. Pena, 198 Cal. Rptr. 819 (Cal. Ct. App.

0 a ee ee 19, 29

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

(N.Y. 1979) .. solatadadii 21

Rich v. Fuller, 666. A. 2d 1 (Me. 1995) . ee eae 19-20

Rittenhouse v. Superior Court, 1 Cal. Rptr. 2d 595

OF 21

Ryan v. Ryan, 642 N.E.2d 1028 (Mass. 1994) ........ 21

Scott v. Grinnell, 161 A.2d 179 (N.H. 1960) _......... 20

In re Sealed Case, 107 F.3d 46 (D.C. Cir. 1997)... 27

In re Sealed Case, 676 F.2d 793 (D.C. Cir. 1982) .. 33

Sims v. Georgia, 311 S.E.2d 161 (Ga. 1984) ......... 21

In re Smith’s Estate, 57 N.W.2d 727 (Wis. 1953).. 20

South Carolina v. Doster, 284 S.E.2d 218 (S.C.),

cert. denied, 454 U.S. 1030 (1981) —................ 19, 28, 29

Spectrum Systems International Corp. v. Chemical

Bank, 581 N.E.2d 1055 (N.Y. 1991) —.................. 14

Steqman v. Miller, 515 S.W.2d 244 (Ky. 1974)... 19

In re Subpoena No. 22, Misc. No. 80099 of 1996,

1998 WL 86687 (Pa. Super. Ct. Mar. 2, 1998)... 20, 21

Taylor v. Sheldon, 173 N.E.2d 892 (Ohio 1961) .... 20

Tillinghast v. Lamp, 176 A. 629 (Md. 1935) ........... 19

Trammel v. United States, 445 U.S. 40 (1980)... 11

United States v. Fowler, 608 F.2d 2 (D.C. Cir.

0 EEE Ee Se 35

United States v. Nobles, 422 U.S. 225 (1975) .10, 30, 31, 35

United States v. North American Reporting, Inc.,

761 F.2d 735 (D.C. Cir.), cert. denied, 474 U.S.

SSS 35

United States v. One Parcel of Property at 31-33

York Street, 930 F.2d 139 (2d Cir. 1991) .......... 25

United States v. Osborn, 561 F.2d 1334 (9th Cir.

SE eee a ae eee 19. 27

vii

TABLE OF AUTHORITIES—Continued

Page

United States v. Scheffer, 118 S. Ct. 1261 (1998)... 28

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

Valdez v. Winans, 738 F.2d 1087 (10th Cir. 1984). 18, 29

Westinghouse Electric Corp. v. Republic of the

Philippines, 951 F.2d 1414 (3d Cir. 1991) ........... 14

Williams v. Kentucky, 829 S.W.2d 942 (Ky. Ct.

App. 1992) .. soneelaetinstalpiincbiaediniiitaasibiasendstiittihinmaanedinini 21

Wyoming v. Kump, 301 P.2d 808 (Wyo. 1956)... 29

STATUTES

| Ee 2

8 8 ae 2, 8, 11, 14, 22

Fed. R. Civ. P. 26(b) (8) 00.0. 2, 31, 32, 33, 35

NR ee ee 21

Le cee SNS Lae 21

Ark. Code Ann. § 16-41-101, Rule 502... 21, 23

ae 21

Del. Code Ann., Del. R. Evid. 502.000.000.000 21

RE ee oe 21

Haw. Rev. Stat. § 626-1, Rule 503... 21

i 21

Kan. Stat. Ann. § 60-426 0000s 21

8 RT TS Ee ee eee a 21

La. Code Evid. Ann. art. 506 0 21

NS eS ee ee 21

Ne ee 21

Neb. Rev. Stat. § 27-5038... itd 21

RE ee ee 21

8 ESRC a 21

N.J. Stat. Ann. 2A :84A, App. A, N.J. R. Evid. 504. 21-22

N.M. Stat. Ann. N.M. R. Evid. 11-5038 22

NAR EE ae 28

N.D. R. Evid. 502 = - §

Oh. Rev. Code Ann. § 2317.02 2000000 22

12 Okla. Stat. Ann. § 2602 ................222...00..--e.-ee 22

RS ee ee 22

S.D. Codified Laws § 19-18-40 22

LN 8 ree 22

EE ae 22

TABLE OF AUTHORITIES—Continued

Page

Vt. Stat. Ann., Vt. R. Evid. 602 202... 22

Wis. Stat. Amn. § 905.08 200.2... ceccccccceeceeceeeeeneeeeee 22

MISCELLANEOUS

Epstein, The Attorney-Client Privilege and the

Work-Product Doctrine (3d ed. 1997) ................ 24

Fiske, Report of the Independent Counsel in re

Vincent W. Foster, Jr. (1994) ...................--...0-- 18, 16

Frankel, The Attorney-Client Privilege After the

Death of the Client, 6 Geo. J. Legal Ethics 45

ee SN Sa eee 15, 24

Hazard and Hodes, The Law of Lawyering (1998) .. 24, 27,

Lane, Goldstein Trial Technique (8d ed. 1996) ........ 36, 37

oO a ae ee 15

EE Se ae ee oa 15

1 McCormick on Evidence (4th ed. 1992) ......11, 21, 23, 31

Model Code of Evidence, Rule 209(c) (1) ................ 22

2 Mueller & Kirkpatrick, Federal Evidence

RE 6s eS ee eee ee 18, 24

Newman, Hugo Black (1994) ................--ccccceeeeeeoeeee 17

Proposed Federal Rules of Evidence, Rule 503(c),

56 F.R.D. 188, 236 (1972) .2........ccccecccceeccceeeeeeeee 22

Proverbs 22:1 . socidahieeralatialieamdiinastiahccipeaiasiidasasdainnaasiien 15

Restatement (Third) of the Law Governing Law-

yers (Proposed Final Draft No. 1, March 29,

TIDE cctotanenitmenneatiataimnivanbibtbintedplansiemeniel 21, 23, 27

Rice, The Attorney-Client Privilege in the United

PD CE nccinrrttrineritacinncneeentinniamintniiteninibtigeeds 24

Shakespeare, Richard 10 oo................ccccccccceceeceeeeeeeeenee 15

Starr, Report of the Office of Independent Counsel

on the Death of Vincent W. Foster, Jr. (1997)... 16

Uniform Rules of Evidence, Rule 602(c) ................. 22, 23

U.S. Department of Commerce, Statistical Ab-

stract of the United States 1996 ..0000............ccccc0- 18

Weinstein’s Federal Evidence (2d ed. 1997) ............ 24

Wigdor, The Personal Papers of Supreme Court

I Be cnctsiattnsrrasiinnirctniencintianicinbeiastatinniiiiteninn 17

8 Wigmore, Evidence (McNaughton rev. 1961).... 24

TABLE OF AUTHORITIES—Continued

Page

Wolfram, Modern Legal Ethics (1986) .. 23

24 Wright & Graham, Federal Practice and Proce-

SENSES SETAE, EASES Ac aR 15, 24

In THE

Supreme Court of the United States

OCTOBER TERM, 1997

No. 97-1192

SwIDLeR & BERLIN and JAMES HAMILTON,

. Petitioners,

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF FOR PETITIONERS

OPINIONS BELOW

The majority opinion of the court of appeals and a

redacted version of the dissenting opinion are reported at

124 F.3d 230 and are printed in full text at Pet. App.

la-26a.' The court’s order on petition for rehearing, and

the opinion dissenting from denial of rehearing (Pet.

App. 27a-32a), are reported at 129 F.3d at 637. The

district court issued a separate opinion for cach of the

two subpoenas involved. The opinions, which are iden-

1 After the opinions were published, the court of appeals entered

an order unsealing, among other things, the redacted portions of

Judge Tatel’s dissent. Order dated January 12, 1998, D.C. Cir. No.

97-3006. Consequently, the appendix to the petition for certiorari

(hereinafter Pet. App.), which was filed after the unsealing order,

contains an unredacted version of Judge Tatel’s dissent.

tical except for docket numbers and captions, are not

reported and are printed (with redactions not relevant

here) at Pet. App. 32a-42a and 43a-53a.

JURISDICTION

The court of appeals entered its judgment on August

29, 1997. The court entered an order denying a timely

petition for rehearing on November 21, 1997. The peti-

tion for certiorari was filed December 31, 1997. The

petition was granted March 30, 1998. On April 6, 1998

the Court expedited consideration of this case. The juris-

diction of this Court rests on 28 U.S.C. 1254(1).

RULES INVOLVED

Rule 501 of the Federal Rules of Evidence and Rule

26(b)(3) of the Federal Rules of Civil Procedure appear

at Pet. App. 54a-56a.

STATEMENT

On July 11, 1993, in the midst of intense public contro-

versy about the White House Travel Office, White House

Deputy Counsel Vincent Foster met with Washington,

D.C., attorney James Hamilton to discuss his and the

White House’s possible needs for legal representation.

In anticipation of the meeting, Mr. Hamilton read and

made notes on a report issued by the White House on the

Travel Office matter. Pet. App. 40a. He and Mr. Foster

then spoke for two hours, during which Mr. Hamilton

took three pages of handwritten notes. Pet. App. 31a.

Before the conversation began, Mr. Foster sought and

received assurances from Mr. Hamilton that the conver-

sation was privileged. Pet. App. 25a. This is confirmed

by Mr. Hamilton’s December 18, 1995 Affidavit, which

recounted that Mr. Foster “made clear at the outset that

this was a ‘privileged’ conversation.” JA 5. Indeed, one

of the first entries in the notes is the word “Privileged,”

reflecting this exchange between them. Pet. App. 4la.

Mr. Hamilton’s Affidavit also states that, in addition

to including information provided by Mr. Foster that Mr.

Hamilton saw fit to record, the notes contain his “mental

impressions, observations, conclusions, and plans for ac-

tion.” JA 5. And as Juige Tatel said, “[t]he notes bear the

marking of a lawyer focusing the words of his client; he

underlined certain words, placing both check marks and

question marks next to certain sections.” Pet. App. 31a.

Nine days after the meeting, Mr. Foster committed

suicide in Fort Marcy Park in Virginia. Over two years

later, on December 4, 1995, a federal grand jury, at the

request of Independent Counsel, issued subpoenas to Mr.

Hamilton and his law firm, Swidler & Berlin, seeking Mr.

Hamilton’s notes.

Mr. Hamilton and his firm moved to quash or modify

the subpoenas. The district court (Chief Judge Penn)

inspected the notes in camera. He found that “Hamilton

met with Foster to discuss possible representation of

Foster,” “that Foster spoke with Hamilton as an attorney

and [that] a review of the notes supports that finding.”

Pet App. 4la. He held that “one of the first notations

on the [notes] is the word: ‘Privileged,’ so it is obvious

that the parties, Hamilton and Foster, viewed this as a

privileged conversation.” Pet. App. 41a. He also found

that the notes were prepared in anticipation of litigation

and “reflect the mental impressions of the lawyer.” Pet.

App. 42a. The district court concluded that both the

attorney-client and work product privileges barred dis-

closure. Pet. App. 41a, 42a.

The Court of Appeals for the District of Columbia

reversed. Recognizing that “[t]he parties agree that the

communications at issue would be covered by the

[attorney-client] privilege if the client were still alive,”

the court concluded that “the client’s death calls for a

qualification of the privilege.” Pet. App. 2a. The “quali-

fication” created by the court would permit “post-death

use [of the otherwise privileged communication] in crim-

inal proceedings” where the prosecutor convinces the trial

court that the “relative importance [of the communica-

tion] is substantial.” Pet. App. 10a. The court declared

that the prosecutor is entitled to obtain privileged com-

munications that “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. On the other hand,

“(where there is an abundance of disinterested witnesses

with unimpaired opportunities to perceive and unim-

paired memory, there would normally be little basis for

intrusion on the intended confidentiality.” Jd. Independ-

ent Counsel in his briefs had not argued for such a bal-

ancing process.

The court of appeals reasoned that the prospect of post-

death revelation in the criminal context will trouble a

client less than in the civil context, because after death

“criminal liability will have ceased altogether” while civil

liability “characteristically continues.” Pet. App. 6a. The

court recognized that a concern for survivors might

stir a desire to protect the client’s estate from civil lia-

bility, but did not discuss whether the same concern might

foster an interest in protecting the living from criminal

penalties. Pet. App. 6a. The court also “doubt[ed]” that

the client’s concerns for post-death reputation would be

“very powerful; and against them the individual may even

view history’s claims to truth as more deserving.” Pet.

App. 7a. The court added that, “[tlo the extent . . . that

any post-death restriction of the 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.” Pet. App. 7a.

As to the other side of the balance, the court concluded

that the client’s death heightens the prosecutor’s need for

otherwise privileged communications. The court con-

cluded that “unavailability through death, coupled with

the non-existence of any client concern for criminal lia-

bility after death, creates a discrete realm (use in criminal

proceedings after death of the client)” where the privilege

should give way upon the prosecutor’s showing of need.

Pet. App. 7a-8a.

The court of appeals also held that the notes were not

protected by the work product privilege. The court rec-

ognized prior decisions holding that attorney interviews

conducted “as part of a litigation-related investigation”

receive heightened work product protection even as to

factual material, because “the facts elicited necessarily

reflected a focus chosen by the lawyer.” Pet. App. 13a.

However, the court concluded that the present case is dif-

ferent because

the interview was a preliminary one initiated by the

client. Although the lawyer was surely no mere

potted palm, one would expect him to have tried to

encourage a fairly wide-ranging discourse from the

client, so as to be sure that any nascent focus on the

lawyer’s part did not inhibit the client’s disclosures.

Id. Because of the court’s conclusive presumption that,

at this stage, the lawyer “has not sharply focused or

weeded the materials,” it found that the notes did not

deserve the “super-protective envelope” normally afforded

opinion work product. Pet. App. 13a-14a. The Court

remanded the case to the district court for reexamination

of the notes in light of its opinion as to both the attorney-

client and work product issues.

Judge Tatel dissented. While conceding that concern

for surviving friends and family or posthumous reputa-

tion “may not influence every decision to confide poten-

tially damaging information to attorneys,” Judge Tatel

concluded that “these concerns very well may affect some

decisions, particularly by the aged, the seriously ill, the

suicidal, or those with heightened interests in their post-

humous reputations.” Pet. App. 23a (emphasis in orig-

iual). Judge Tatel argued that, after the court’s decision,

such persons will not talk candidly with a lawyer after

they receive the advice the court’s opinion now requires

lawyers to give:

I cannot represent you effectively unless I know

everything. I will hold all our conversations in the

strictest of confidence. But when you die, | could be

forced to testify—against your interests—in a crim-

inal investigation or trial, even of your friends or

family, if the court decides that what you tell me is

important to the prosecution. Now, please tell me

the whole story.

Pet. App. 20a (emphasis in original). Judge Tatel con-

cluded that wie court’s decision “strikes a fundamental

blow to the attorney<lient privilege and jeopardizes its

benefits to the legal system and society.” Pet. App. 26a.

The court of appeals denied rehearing in banc, with

two judges dissenting as to the attorney-client privilege

issue (Judges Tatel and Ginsburg).’? Pet. App. 28a. The

dissent emphasized that Independent Counsel had offered

no evidence that abrogating the attorney-client privilege

after death will not chill client communications with at-

torneys. Pet. App. 29a-30a. Such evidence, the dissent

argued, is required to overturn the common law rule that

the privilege survives death—a rule resting on the propo-

sition that it is necessary to promote candid client dis-

closures.

Judge Tatel also dissented on the work product issue.

He disgreed with the court’s conclusive presumption that

attorney notes taken at an initial client interview do not

reflect the attorney’s mental impressions because the law-

yer does not “sharply focus[] or weed[]” the words of a

client at an initial session. Pet. App. 30a. Instead, Judge

Tatel argued, “lawyers bring their own judgment, ex-

2 Judges Sentelle and Garland did not participate.

perience, and knowledge of the law to conversations with

clients.” Id.

Whether courts can require production of attorney

work product should turn not on the stage of repre-

sentation or who initiates a meeting, but on whether

the attorney's notes are entirely factual, or whether

they instead represent the “opinions, judgment, and

thought processes of counsel.”

Pet. App. 3la (citation omitted). In this case, Judge

Tatel said, the notes demonstrate that Mr. Hamilton “ac-

tively exercised his judgment when interviewing his

client,” because “[iJn two hours, he created only three

pages of notes,” in which he “underlined certain words,

placing both check marks and question marks next to cer-

tain sections.” Pet. App. 3la. Consequently, Judge Tatel

concluded, “[t]he notes clearly represent the opinions,

judgment, and thought processes of counsel,” the same

conclusion the district court had reached. /d.

SUMMARY OF ARGUMENT

1. Persons who expect to die soon—whether because

of advanced age, illness, suicide, or a dangerous life-style

—have the right to consult attorneys in confidence about

criminal matters that threaten friends, associates, family or

their own reputations. The court of appeals’ decision

denies them that riglit, and thus discriminates against the

dying. More broadly, the decision also defeats the funda-

mental purpose of the privilege, which is to encourage

full and frank communication between attorneys and

clients and thereby promote observance of law and the

administration of justice. In so doing, it potentially will

affect adversely. on a daily basis, innumerable conversa-

tions between clients and their attorneys, as amici attorney

associations confirm.

The court of appeals erroneously assumes that persons

facing death do not care whether their friends, associates.

family, or their own reputations are harmed by disclosures

after death in criminal proceedings. This assumption ig-

nores the fact that people write wills, establish trusts, buy

life insurance and burial plots, establish foundations, en-

dow chairs, and write memoirs—actions evincing concern

for what happens to the well-being of others and their

own reputations feiosving death.

The adverse effect of the court of appeals’ decision on

client candor is not ameliorated by limiting disclosure to

criminal proceedings, and by requiring the prosecution to

demonstrate that it needs the evidence. An elderly or ill

person may be far more troubled by the prospect of a

loved one’s suffering a criminal sanction, than by potential

civil liabilities that might diminish the family’s inheritance.

And a case in which the prosecution needs the evidence

is exactly the kind of case where the prospect of disclosure

would most trouble the client.

Moreover, the court of appeals’ balancing test results

in substantial uncertainty and “[a]n uncertain privilege is

little better than no privilege at all.” Upjohn Co. v. United

States, 449 U.S. 383, 393 (1981). Making the promise

of confidentiality contingent upon the outcome of an un-

certain balancing test “would eviscerate the effectiveness

of the privilege.” Jaffee v. Redmond, 518 U.S. 1, 17

(1996).

Rule 501 of the Federal Rules of Evidence requires

federal courts to consider “reason and experience” in

interpreting the common-law privileges. The great weight

of case law holding that the privilege survives death (ex-

cept in the testamentary context), as well as the numerous

state statutes to the same effect, reflect both “reason” and

“experience,” which instruct that client candor will be

chilled if clients know that the privilege may evaporate

after their death.

There is no merit to the court of appeals’ argument

that the privilege already is so beset with exceptions that

one more will do little damage. In particular, the testa-

mentary exception, which was in large part designed to

effectuate the client’s intent, should not be relied on to

frustrate that intent by permitting testimony that may in-

flict criminal sanctions on the client's friends, family or

associates. Despite the extant exceptions, the attorney-

client privilege still is vital to our system of justice. The

argument that one more exception can do little harm can

lead only to progressive erosion of the privilege.

2. The court of appeals’ decision refusing to accord

heightened work product protection to ihe notes was

fatally infected by its unsupportable presumption, which

Independent Counsel does not defend, that lawyers at

initial client interviews do not exercise professional judg-

ment in determining what client statements to record and

how to record them. This presumption is belied by the

experience of seasoned practicing attorneys, whose views

are represented by amici attorney associations, and by the

record in this case. Clients typically choose attorneys be-

cause of their professional background and experience. Mr.

Hamilton brought to the Foster interview extensive experi-

ence in highly-publicized, “political” cases. He also had pre-

pared for the interview by reading a recently-issued White

House report on the Travel Office matter. During the

course of a two-hour interview, he took only three pages

of notes, clearly exercising judgment as to what to record.

His actions vividly illustrate the unrealistic nature of a

presumption that lawyers at initial interviews are simply

passive recorders of what clients say.

This Court’s leading decisions on the work product

privilege have accorded “special protection” to attorney

notes of witness interviews, because “ ‘what [the attorney]

saw fit to write down regarding witnesses’ remarks’” re-

flects the attorney’s mental impressions, which the privilege

is designed to protect. Upjohn Co. v. United States, supra,

449 US. at 399-400, quoting Hickman v. Taylor, 329

U.S. 495, 513 (1947). Redaction does not resolve the

issue; it May serve to eliminate the attorney's explicit ex-

pressions of opinion, but disclosure of the “factua’” por-

tions of the notes inevitably reveals the attorney’s selection

of what was “fit to write down.”

The court of appeals’ erroneous presumption that attor-

neys do not bring their professional judgment to bear in

initial client interviews led it to conclude that the ordinary

standard of need under Federal Rule of Civil Procedure

26 should be applied in determining whether the privilege

pertains, rather than the heightened standard required by

Hickman and Upjohn. Allowing the prosecution to obtain

attorney interview notes based on the ordinary standard

of need will destroy the “privileged area within which

[the attorney] can analyze and prepare his client’s case.”

United States v. Nobles, 422 U.S. 225, 238 (1975).

When taking interview notes, an attorney cannot possibly

know how a court might view a prosecutor’s later asser-

tion of need, and if disclosure hinges on such assertion,

both attorney and client would be at peril whenever the

attorney takes notes. The inevitable result would be that

“much of what is now put down in writing would remain

unwritten”—degrading the quality of case preparation and,

ultimately, the administration of justice. Hickman v.

Taylor, supra, 329 U.S. at 511.

ARGUMENT

I. THE PRIVILEGE PROTECTING COMMUNICA-

TIONS BETWEEN CLIENT AND ATTORNEY SUR-

VIVES THE CLIENT'S DEATH.

As Judge Tatel found, and the views of thousands of

seasoned lawyers represented by amici attorney associa-

tions confirm, the court of appeals’ decision strikes a “fun-

damental blow” to the attorney-client privilege.’ Indeed,

the decision discriminates against the aged, the diseased,

and the distraught—against the most vulnerable in our

society—-by denying them the right to consult a lawyer in

* It is also a direct attack on Mr. Foster’s desire and intention

that the conversation at issue remain privileged.

confidence.* Reason and experience, whose consideration

Federal Rule of Evidence 501 demands, do not allow this

badly flawed decision to stand.

1. The purpose of the attorney-client privilege is “to

encourage full and frank communication between attor-

neys and their clients and thereby promote broader public

interests in the observance of law and administration of

justice.” Upjohn Co. v. United States, 449 U.S. 383, 389

(1981). The privilege is “rooted in the imperative need

for confidence and trust” between client and attorney,

without which the client is not likely to reveal facts that

may be deeply embarrassing or incriminating. Trammel v.

United States, 445 U.S. 40, 51 (1980). The attorney

must “know all that relates to the client’s reasons for seek-

ing representation if the professional mission is to be car-

ried out.” Id. The privilege thus is “justified . . . by a

‘public good transcending the normally predominant prin-

ciple of utilizing all rational means for ascertaining the

truth.”” Jaffee v. Redmond, 518 U.S. 1, 9 (1996) (quot-

ing Trammel, 445 U.S. at 50).

For practicing lawyers, the privilege is vital. “[{TJhe

problem of the guarded half-truths of the reticent client is

familiar to [lawyers] in their day-to-day work.” 1 Mc-

Cormick on Evidence, § 6 at 353 (4th ed. 1992). Ability

to give an unqualified assurance of confidentiality is neces-

sary for the lawyer seeking to persuade a nervous or reluc-

tant client to tell the whole truth. But under the court of

appeals’ decision, the lawyer cannot give unqualified as-

surance. Instead, the lawyer must tell the client that

“when you die, I could be forced to testify—against your

interests—in a criminal investigation or trial, even of your

friends or family, if the court decides that what you tell

me is important to the prosecution.” Pet. App. 20a. For

a client who is elderly, severely ill, suicidal or has other

reason to expect imminent death, such a statement would

* Amicus National Hospice Organization supports Petitioners be-

cause the decision discriminates against the dying.

sound more like a Miranda warning than an assurance of

confidentiality.

This Court has recognized that “the privilege has the

effect of withholding relevant information from the fact-

finder.” Fisher v. United States, 425 U.S. 391, 403

(1976). For that reason, the privilege applies only “where

necessary to achieve its purpose.” /d. But where the pur-

pose of the privilege is implicated, it must be applied in

order to “encourage clients to make full disclosure to their

attorneys.” Jd. And where the privilege applies, it bars

the grand jury from obtaining the privileged information.

Branzburg v. Hayes, 408 U.S. 665, 688 (1972).

Moreover, the fact-finder’s loss is more apparent that

real. Because the privilege only protects communications

“which might not have been made absent the privilege,”

Fisher v. United States, supra, 425 U.S. at 403, the fact-

finder loses access only to a communication that may never

have been made without an assurance of confidentiality.

“Without a privilege, much of the desirable evidence to

which litigants . . . seek access . . . is unlikely to come

into being.” Jaffee v. Redmond, supra, 518 U.S. at 12.

“This unspoken ‘evidence’ will therefore serve no greater

truth-seeking function than if it had been spoken and

privileged.” /d.

The facts of this case are vivid illustration of how the

privilege creates information, rather than suppressing it.

The district court found that “one of the first notations on

the [notes] is the word: ‘Privileged’, so it is obvious that

.. . Foster... viewed . . . notes of that conversation as

privileged.” Pet. App. 25a. Indeed, as this notation re-

flected and Mr. Hamilton’s Affidavit confirms, Mr. Foster

had asked Mr. Hamilton before the conversation began

whether it was privileged and received assurances that it

was. Pet. App. 4la. Thus the conversation likely would

not have taken place—and there would have been no

notes to subpoena-—had Mr. Hamilton not given this as-

surance of confidentiality. JA 5, Pet. App. 25a. The con-

versation occurred just nine days before Mr. Foster took

his own life, and apparently within hours of when he wrote

his now famous note stating, in obvious reference to him-

self, that in Washington “ruining people is considered

sport.” ° While we will never know his precise thoughts,

it is likely that he would have been reluctant to confide

had he been told that the conversation was privileged

unless you die.

In arguing that the client’s death creates a greater need

for the information, the court of appeals asserts—contrary

to the policy underlying the privilege as well as the case

law applying it—that need for the information overcomes

the privilege. That argument ignores the fact that the

information might well not exist but for the privilege.

As Judge Tatel observed,.that argument also would jus-

tify abrogating the privilege whenever the witness is un-

available for any reason.® And it ignores the prevailing

federal and state case law recognizing that, where the

privilege applies, it is absolute and may not be overcome

by a showing of the fact-finder’s need. “[I]f a party dem-

onstrates that the attorney-client privilege applies, the priv-

ilege affords all communications between attorney and

client absolute and complete protection from disclosure.”

In re Allen, 106 F.3d 582, 600, rehearing in banc denied,

119 F.3d 1129 (4th Cir. 1997), cert. denied, 118 S. Ct.

689 (1998). “Assuming the requisite relationship and

confidential communication, the privilege is absolute and

disclosure may not be ordered, without regard to rele-

vance, necessity or any particular circumstances peculiar

5 Fiske, Report of the Independent Counsel In Re Vincent W.

Foster, Jr., pp. 18-14 and Exh. 5 (June 30, 1994).

® However, Valdez v. Winans, 738 F.2d 1087 (10th Cir. 1984),

held in a habeas proceeding that an accused's constitutional rights

were not violated when the state trial court sustained a claim of

attorney-client privilege to bar testimony by an attorney that her

client, rather than the defendant, committed the crime. In that

case the client was not dead, but was unavailable to testify because

he had invoked the Fifth Amendment.

to the case.” Gordon v. Superior Court, 65 Cal. Rptr.

2d 53, 59 (Cal. Ct. App. 1997); Westinghouse Elec.

Corp. v. Republic of Philippines, 951 F.2d 1414, 1429

(3d Cir. 1991) (“The work-product doctrine recognizes a

qualified evidentiary protection, in contrast to the absolute

protection afforded by the attorney-client privilege.”);

Kujawa v. Manhattan Nat'l Life Ins. Co., 541 So.2d 1168,

1169 (Fla. 1989) (attorney-client privilege provides “ab-

solute immunity from disclosure”); National Sec. Fire &

Cas. Co. v. Dunn, 705 So.2d 605, 608 (Fla. Dist Ct.

App. 1997) (“Notwithstanding a litigant’s entitlement to

work-product material upon a showing of need and undue

hardship, the attorney-client privilege is absolute.”);

Spectrum Systems Int'l Corp. v. Chemical Bank, 581 N.E.

2d 1055, 1060 (N.Y. 1991) (attorney-client communica-

tions entitled to “absolute immunity” from discovery).

2. There is no basis for the court of appeals’ conclu-

sion that the purpose of affording absolute protection to

attorney-client communications as to criminal matters

evaporates when the client dies. The court of appeals

explicitly and wrongly assumes that persons facing death

do not care whether their own reputations are harmed

by disclosures after death in criminal matters. The court

implicitly and wrongly assumes that the dying do not

care about the post-death impact of criminal proceedings

on their family, friends and associates. These assump-

tions are contrary to the “reason and experience” that

Rule 501 requires the federal courts to consider in inter-

preting the attorney-client privilege. People write wills,

establish trusts, buy life insurance and burial plots, invest

in their children’s education, establish foundations, endow

chairs and write memoirs—actions evincing concern for

what happens to the well-being of others and their own

reputations following death.

Concern for the well-being of others comports with the

finest traditions of our culture and religious heritages. The

Bible exhorts us to care for others and to “love your

ee ee ee a me me ee a

neighbor as yoursclf.”’ Our national tradition celebrates

those who devoted their lives to serving others. We ob-

serve, for example, national holidays on the birthdays of

Presidents Washington and Lincoln and Dr. Martin Luther

King. Most of us fall short of the standards set by our

faiths and our national heroes, but many Americans give

generously to charities and exhibit concern for others in

their daily lives. And most of us also have family, friends

and associates we would not want to harm—before or

after our death. To argue that concern for others does not

typically extend beyond death is to posit a callous self-

centeredness that is inconsistent with common experience.

Nor is it correct to suggest, as does one academic com-

mentator cited by the court of appeals, that ordinary

people have no concern for their reputation following

death and to disparage any such concern as “Pharaoh-

like.” Pet. App. 4a, quoting 24 Wright & Graham, Federal

Practice and Procedure § 5498, at 484 (1986). This far

too dismissive comment overlooks the fact that many per-

sons adhering to more contemporary faiths place great

store in the value of a good name. Concern for one’s own

reputation is a value celebrated by the Bible* and our

culture’s great literary works;® it is hardly an outdated

relic of ancient times. And plainly, “peoples’ concern

with reputation may well be socially desirable and hence

worth encouraging. For if individuals did not care about

their name, including after their death, they would likely

behave worse—morally and legally—while alive.” Frankel,

The Attorney-Client Privilege After the Death of the

Client, 6 Geo. J. Legal Ethics 45, 63 (1992).

Thoughts about how one will be remembered by his

family, friends and community, are quite likely to emerge

7 Leviticus 19:18; Mark 12:31.

8“A good name is rather to be chosen than great riches.” Prov-

erbs 22:1.

®*“The purest treasure mortal times afford [i]s spotless reputa-

tion.” Shakespeare, Richard I], Act I Scene 1.

shortly before death. Such thoughts could well make a

client fearing posthumous disclosure chary about reveal-

ing sensitive, personal matters to an attorney.

As Judge Tatel remarked in dissent, this case is a

particularly inappropriate one in which to abrogate the

posthumous protection of the privilege. Mr. Foster, shortly

before his death, gave a law school commencement speech

emphasizing the high value he placed on personal repu-

tation. Pet. App. 23a. Indeed, Independent Counsel

Starr’s report on Mr. Foster’s death stressed that his “pub-

lic persona as a man of integrity, honesty, and unimpeach-

able reputation was of utmost importance.” Starr, Report

of the Office of Independent Counsel on the Death of Vin-

cent W. Foster, Jr., at 98 (1997). Independent Counsel

Fiske and even Independent Counsel Starr (who now gen-

erally minimizes the concern for posthumous reputation)

both concluded that attacks on Mr. Foster’s reputation and

others could have contributed to the depression that caused

him to take his own life. Jd. at pp. 105-10; Fiske, Report

of the Independent Counsel In Re Vincent W. Foster, Jr.,

pp. 8-17 (1994).”°

The court of appeals expressed “doubt” that an individ-

ual’s “residual” interest in post-mortem reputation “will be

very powerful,” suggesting that “the individual may even

view history’s claims to truth as more deserving.” Pet.

App. 7a. But anyone familiar with memoirs knows that

most people who speak “for history” tend to choose words

with extreme care. “Most public servants’ memoirs turn

out to be self-serving exercises in which their political de-

cisions are retrospectively interpreted in the best possible

1° Mr. Fiske also relates how Mr. Foster, unset that a colleague

was reprimanded in the Travel Office matter, sought instead to take

the blame himself. Jd. at p. 12. Mr. Foster’s now famous note—

likely written within hours of his visit to Mr. Hamilton—-says, in

obvious reference to himself, that in Washington “ruining people

is considered sport.” Jd. at pp. 13-14 and Exh. 5. The note also

complains that “the public will never believe the innocence of the

Clintons and their loyal staff.” Jd. at Exh. 5. His concern for both

his reputation and the well-being of others is evident.

light.” A respected recent memoirist described how he

went through his final draft “with a fine tooth comb” to

assure that, while being honest, he would “not, at the

same time, be hurtful,” because he knew “everything you

say will be in print forever.”"* The attorney-client privi-

lege is designed to ensure that persons speak with counsel

with candor and do not edit their statements with a “fine

tooth comb.”

There are many public people who feel, with consider-

able justification, that there is some information as to

which the claims of privacy outweigh the claims of history.

Justice Black, on the eve of his death, directed that cer-

tain of his Court papers be destroyed, in order to pre-

serve the confidentiality of the Court’s deliberations.”

Some years ago, there was strong criticism of a psycho-

therapist who released tapes of his sessions with the poet

Anne Sexton, 17 years after her suicide, to the writer of

a biography published 10 years later. Whether these con-

11“We Can All Learn from McNamara’s Memoirs,” New York

Times (Apr. 13, 1995) at p. A24.

12“Colin Powell Talks About His Family, ‘the Producers’ and

the Making of a Memoir,” Chicago Tribune (Aug. 26, 1996) at

p. C3. If we may be so bold, we also submit that judges carefully

write opinions with a view to the opinion of posterity.

'S Newman, Hugo Black 621-622 (1994). Only his conference

notes were destroyed. Justice Black explained to his son that “re-

ports by one Justice of another’s conduct in the heat of a difference

might unfairly and inaccurately reflect history.” Wigdor, The Per-

sonal Papers of Supreme Court Justices 48 (1986).

14 The therapist who released the tapes was “excoriated” by the

president of the American Academy of Psychoanalysis and the

chairman of the ethics committee of the American Psychiatric

Association. “Dead Poet’s Confidences an Open Book,” Cleveland

Plain Dealer (Sept. 22, 1991), 1991 WL 4521561. Another commen-

tator on the incident, a writer and psychiatrist, stated that “[m]ost

authors I know are very invested in what reputation might outlive

them.” Ablow, “Whose Life Is It, Anyway?; Keeping Confidences

Shared in Psychotherapy,” Washington Post (Sept. 24, 1991), 1991

WL 2117233. Although the tapes were released with the consent

cerns are right or wrong is not paramount. What is im-

portant is that many people feel strongly that there is a

zone of privacy that should be respected even after death.

Such feelings would inhibit candor where a person who is

elderly, ill or suicidal is told that the privacy of conver-

sations with an attorney may not be respected following

death.

The court of appeals cited academic commentators who

stated that few clients are much concerned about what

will happen after “the death that everyone expects but few

anticipate in an immediate or definite sense.” Pet. App. 5a,

quoting 2 Mueller & Kirkpatrick, Federal Evidence § 19,

at 380 (1994). But the attorney-client privilege does not

exist only for the benefit of young, healthy clients, for

whom death may be a remote prospect. While it may be

that those who are blessed with the insouciance of youth

have no concerns about their passing, those of us bur-

dened by the exigencies of advancing age, infirmity and

distress also are entitled to obtain confidential legal ad-

vice. Every year, hundreds of thousands of Americans

learn that they have a life-threatening illness."* Every year,

millions of Americans, even those fortunate enough to re-

tain good health, reach an age at which thoughts of mor-

tality intrude. These people—as well as others who are

of the potet’s daughter and literary executor, this commentator

compared the therapist who released them to “a priest who, at the

family’s request, makes available the confessions of a deceased

parishioner.” Jd. See also, “Release of Poet’s Therapy Tapes Called

a Breach of Confidentiality Ethics: Psychiatrist criticized for giv-

ing Anne Sexton’s biographer access to the recordings, even 17

years after Pulitzer Prize winner’s suicide,” Los Angeles Times

(Aug. 11, 1991), 1991 WL 2245191.

In 1993, some 566,000 persons died of cancer or as a conse-

quence of HIV infection. U.S. Department of Commerce, Statistical

Abstract of the United States 1996, at 96. Given the nature of these

diseases, most of these persons likely were aware for some period

of time that they would die soon. The American Cancer Society

estimates that there were 1.3 million new cancer cases in 1996.

Id. at 145.

19.

suicidal or engaged in hazardous lifestyles—are entitled

to consult an attorney in confidence. Indeed, people in

the final stages of life frequently feel a particular need to

speak with an attorney to put their own affairs in order

or to resolve family or business problems. But under the

court of appeals’ decision, those people may lose their

right to do so in confidence.

3. The overwhelming majority of decided cases

supports the conclusion that the attorney-client privilege

survives the client’s death. Seven states have held that the

attorney-client privilege survives the death of the client in

criminal proceedings." The Ninth Circuit and 19 states

have held that the attorney-client privilege survives the

client’s death in civil cases." The oaly decision to the

> The following decisions excluded from criminal proceedings

evidence of communications between a deceased person and that

person’s attorney: Mayberry v. Indiana, 670 N.E.2d 1262 (Ind.

1996); In re a John Doe Grand Jury Investigation, 562 N.E.2d 69

(Mass. 1990) ; People v. Modzelewski, 611 N.Y.S.2d 22 (N.Y. App.

Div. 1994); Arizona v. Macumber, 544 P.2d 1084, 1086 (Ariz.

1976), cert. denied, 439 U.S. 1006 (1978); People v. Pena, 198 Cal.

Rptr. 819, 829 (Cal. Ct. App. 1984); Cooper v. Oklahoma, 661 P.2d

905, 907 (Okla. Crim. App. 1983); South Carolina v. Doster, 284

S.E.2d 218, 220 (S.C.), cert. denied, 454 U.S. 1030 (1981).

'T The Ninth Circuit cases are United States v.

1334 (9th Cir. 1977) and Baldwin v. + ct ett y wa

Revenue, 1256 F.2d 812, 815 (9th Cir. 1942). In Osborn, the dis-

closure had criminal implications; the district court had allowed

intervenors to claim the Fifth Amendment privilege as to some

documents at issue. 561 F.2d at 1336.

State cases holding that the privilege survives in civil

are: Fox v. Spears, 93 S.W. 560 (Ark. 1906); Doyle v. encom ~

A. 882 (Conn, 1981); De Loach v. Myers, 109 S.E.2d 777 (Ga

1959); Hitt v. Stephens, 676 N.E.2d 275 (Ill. App. Ct.), appeal

denied, 679 N.E.2d 380 (Ill. 1997)); Estate of Voelker, 396 N.E.2d

398 (Ind. Ct. App. 1979); Bailey v. Chicago, Burlington & Quincy

R.R. Co., 179 N.W.2d 560, 564 (Iowa 1970); Stegman v. Miller. 515

S.W.2d 244, 246 (Ky. 1974); Morris v. Cain, 1 So. 797, 807-8 (La

1887) ; Tillinghast v. Lamp, 176 A. 629, 682 (Md. 1985): Rich v.

contrary is from a mid-level state appellate court that until

two months ago had never been followed."* None of these

cases recognizes a distinction between the civil and crim-

inal contexts. This Court has stressed the importance of

uniformity between federal and state court decisions, be-

cause a state promise of confidentiality would have little

value if the client is aware that disclosure may be ordered

by a federal court. Jaffee v. Redmond, supra, 518 U.S.

at 13.

State courts, making no disinction between civil and

criminal matters, also have held that other similar privi-

leges survive death: the privilege for marital communica-

tions,” the patient-physician and patient-psychotherapist

Fuller, 666 A.2d 71, 74-75 (Me. 1995); McCaffrey v. Estate of

Brennan, 533 S.W.2d 264 (Mo. Ct. App. 1976); Lorimer v. Lori-

mer, 83 N.W. 609 (Mich. 1900); Lennox v. Anderson, 1 N.W.2d 912

(Neb.), modified on other grounds, 3 N.W.2d 645 (Neb. 1942);

Clark v. Second Judicial District Court, 692 P.2d 512 (Nev. 1985);

Scott v. Grinnell, 161 A.2d 179, 183 (N.H. 1960); Anderson v.

Searles, 107 A. 429, 430 (N.J. 1919); Taylor v. Sheldon, 173 N.E.2d

892, 895 (Ohio 1961); Miller v. Pierce, 361 S.W.2d 623, 625 (Tex.

Civ. App. 1962); In re Smith’s Estate, 57 N.W.2d 727 (Wis. 1953).

Dicta in federal court opinions are to the same effect. Colonial

Gas Co. v. Aetna Cas. & Sur. Co., 144 F.R.D. 600, 604 (D. Mass.

1992); Dixson v. Quarles, 627 F. Supp. 50, 53 (E.D. Mich.), aff'd

mem., 781 F.2d 534 (6th Cir. 1985), cert. denied, 479 U.S. 935

(1986).

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

1976). After the court of appeals’ decision in the present case, the

Pennsylvania court followed that decision and its own Cohen deci-

sion in holding that the psychiatrist-patient privilege becomes a

qualified privilege after the client’s death where “criminal proceed-

ings are conducted in the context of a grand jury investigation to

solve the client’s murder.” Jn re Subpoena No. 22, Mich. No. 80099

of 1996, 1998 WL 86687, at *7 (Pa. Super. Ct. Mar. 2, 1998).

” Curran v. Pasek, 886 P.2d 272 (Wyo. 1994); Merrill v. William

Ward Ins. Co., 622 N.E.2d 743 (Ohio Ct. App. 1993); Georgia Int’l

Life Ins. Co. v. Boney, 228 S.E.2d 731 (Ga. Ct. App. 1976).

privileges,” and the priest-penitent privilege.” These priv-

ileges survive death even though it is doubtful that, in

most cases, the privileged communications would be chilled

by fear of disclosure because the persons making them

“have the worry of litigation in the back of their minds.”

Jaffee v. Redmond, supra, 518 U.S. at 24 (Scalia, J., dis-

senting). By contrast, persons consulting attorneys fre-

quently are concerned about possible litigation (as Mr.

Foster was), and it is thus fair to presume that the specter

of posthumous disclosure in criminal litigation involving

friends, family or associates would deter candor.

State case law holding that the attorney-client privilege

survives death is supported by numerous state evidence

codes providing that the privilege may be claimed after

death by the client’s personal representative.** These stat-

utes reflect the position taken by the Model Code of Evi-

2° Prink v. Rockefeller Ctr., Inc., 398 N.E.2d 617, 520 (N.Y.

1979) ; Leritz v. Koehr, 844 S.W.2d 583 (Mo. Ct. App. 1993); Wil-

liams v. Kentucky, 928 S.W.2d 942 (Ky. Ct. App. 1992); Ritten-

house v. Superior Court, 1 Cal. Rptr. 2d 595 (Cal. Ct. App. 1991);

Sims v. Georgia, 311 8.E.2d 161 (Ga. 1984); Jewell v. Holzer Hosp.

Found. Inc., 899 F.2d 1507, 1513-14 (6th Cir. 1990) (applying Ohio

law). See 1 McCormick on Evidence § 103 at 388 (4th ed.), Con-

tra: Inre Subpoena No, 22, supra, 1998 WL 86687.

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

22“In general, modern evidence codes reflect the view that the

privilege may be asserted by the personal representative of a de-

ceased client (either an executor or administrator).” Restatement

(Third) of the Law Governing Lawyers, § 127, Comment c (Pro-

posed Final Draft No. 1, March 29, 1996). See also the discussion

of state statutes by Judge Tatel in his dissent. Pet. App. 17a-18a.

State evidence codes allowing the personal representative of the

deceased to assert the privilege include: Ala. R. Evid., Rule 502;

Alaska R. Evid. 503; Ark. Code Ann. § 16-41-101, Rule 502; Cal.

Evid. Code § 953; Del. R. Evid. 502; Fla. Stat. Ann. § 90.502; Haw.

Rev. Stat. § 626-1, Rule 503; Idaho R. Evid. 502; Kan. Stat. Ann.

§ 60-426; Ky. R. Evid. 503; La. Code Evid. Ann. art. 506; Me. R.

Evid, 502; Miss. R. Evid. 502; Neb. Rev. Stat. § 27-508; Nev. Rev.

Stat. § 49.105; N.H. R. Evid. 502; N.J. Stat. Ann. 2A:84A, App. A,

i 22

dence, Rule 209(c)(1), and the Uniform Rules of Evi-

dence, Rule 502(c).” Obviously, these statutes rest on

the assumption that the privilege survives death. Rule 501

of the Federal Rules of Evidence provides that “reason

and experience” shall govern the interpretation of a privi-

lege and “it is appropriate to treat a consistent body of

policy determinations by state legislatures as reflecting

both ‘reason’ and ‘experience.’” Jaffee v. Redmond,

supra, 518 U.S. at 13.™

The court of appeals argues that, because state evidence

codes are consistent with the notion that the privilege ex-

pires when the estate is closed, they involve only testa-

mentary matters and thus do not indicate that the privi-

lege survives death in a criminal context. Pet. App. 4a.

Were the statutes generally so limited, one would expect

to find language to that effect in them. But none of these

statutes says that it is inapposite as to criminal matters or

that the privilege expires when the estate closes.

Indeed, the Uniform Rules of Evidence provide not only

that the personal representative can claim the privilege,

NJ. R. Evid. 504; N.M.R. Evid 11-503; N.D. R. Evid. 502; Oh.

Rev. Code Ann. § 2317.02; 12 Okla. Stat. Ann. § 2502; Or. Rev.

Stat. § 40.225; S.D. Codified Laws § 19-13-4; Tex. R. Civ. Evid. 503

and Tex. R. Crim. Evid. 503; Vt. R. Evid. 502; Wis. Stat. Ann.

§ 905.03.

3 This Court’s 1972 Proposed Federal Rule of Evidence 503(c)

would have maintained the privilege after death. See 56 F.R.D.

183, 236, 240 (1972). This Court in Jaffee found that the Pro-

posed Rule relating to the psychotherapist privilege supported the

position reached in that case. 518 U.S. at 14-15.

24 State legislative support for the proposition that the attorney-

client privilege survives death is far more consistent than the state

support for the psychotherapist privilege that this Court found

significant in Jaffee. 518 U.S. at 14 n.13, 26 (Scalia, J., dissenting).

Jaffee, of course, recognized a new federal privilege; here we at-

tempt to preserve an application of a long-recognized privilege that

has been widely accepted by state legislatures and state and federal

courts.

but also that “[t}he person who was the

lawyer's representative at the time of the communication

is presumed to have authority to claim the privilege but

only on behalf of the client.” Uniform Rule

provision—which on its face applies to any type of pro-

ceeding—is also common in state evidence codes,” and is

found in the Arkansas statute that governs Mr. Foster’s

still-open estate.** Nothing in these statutes indicates that

the privilege is limited, following the client’s death, to civil

proceedings. In Cooper v. Oklahoma, supra, 661 P.2d at

907, the court, citing a statute adopting Uniform Rule

502(c), allowed the deceased’s attorney to claim privilege

when called by the defense in a criminal prosecution.

The court of appeals and Independent Counsel draw

their principal support from certain academic commen-

tators. But even the commentators supporting Independent

Counsel's view concede that the case law is otherwise.

1 McCormick on Evidence, § 94, at 348 (4th ed. 1992)

(“The accepted theory is that the protection afforded by

the privilege will in general survive the death of the

client.” ); Restatement (Third) of the Law Governing Law-

yers § 127 comment c (Proposed Final Draft No. 1,

March 29, 1996) (“The privilege survives the death of

the client. A lawyer for a client who has died has a con-

tinuing obligation to assert the privilege.”);" Wolfram,

Modern Legal Ethics § 6.3.4, at 256 (1986) (“In general,

courts hold that the death of the client does not end the

* Of the statutes cited in note 22, a provision allowing the lawyer

at the time of the communication to claim the privilege appears in

the statutes of Alabama, Alaska, Arkansas, Delaware, Florida, Ha-

waii, Idaho, Kentucky, Louisiana, Maine, Mississippi, Nebraska,

Nevada, New Hampshire, New Mexico, North Dakota, Oklahoma,

Oregon, South Dakota, Texas, Vermont and Wisconsin.

26 Ark. Code Ann. § 16-41-101, Rule 502.

27 After describing the testamentary exception, the Reporter's

Note states that, where this exception does not apply, the cases

“routinely hold that the privilege survives.” Restatement, supra,

§ 127 Reporter's Note.

privilege”); 24 Wright & Graham, Federal Practice and

Procedure § 5498 at 483 (1986) (conceding that the

“common law rule” is as stated by Wigmore—that the

privilege, “being intended to secure a confidence on the

client’s part that no disclosure will be made . . . does

not cease . . . upon the death of the client.”); 2 Mueller

& Kirkpatrick, Federal Evidence § 199 at 379 (2d ed.

1994) (“It is generally held that the privilege is not ter-

minated even by the death of the client, although this view

has been sharply criticized by commentators.”) Moreover,

none of these commentators supports the court of appeals’

view that there should be one rule for civil cases and an-

other for criminal cases.

Other prominent commentators argue forcefully that

the rule should not be changed. Wigmore asserts:

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, when the rela-

tion ended or even after the client’s death, the attor-

ney could be compelled to disclose the confidences,

for there is no limit of time beyond which the dis-

closures might be used to the detriment of the client

or of his estate.

See, 8 Wigmore, Evidence § 2323 (McNaughton rev.

1961). See also Frankel, The Attorney-Client Privilege

After the Death of the Client, 6 Geo. J. Legal Ethics, 45,

78-79 (1992): “{i]ndividuals do usually care about the

dissemination of information about themselves, even after

their deaths, and this concern will lead them to confide

more fully in attorneys if they know that the privilege will

outlive them.” Other commentators recognize that the

privilege survives death and make no call for changing the

rule. Hazard and Hodes, The Law of Lawyering,

§ 1.6:101 at 131 (1998); Weinstein’s Federal Evidence,

§ 503.32 at 503-96 (2d ed. 1997); Epstein, The Attorney-

Client Privilege and the Work-Product Doctrine, at 234

(3d ed. 1997); Rice, The Attorney-Client Privilege in the

United States, $§ 2.5, 2.6 (1993).

4. Apparently recognizing the harmful effects of a

broad rule allowing posthumous disclosure, the court of

appeals attempted to limit the damage by confining dis-

closure to “the discrete zone of criminal litigation.” Pet.

App. 8a. But a client’s concern for family, friends and

associates surely will extend to their potential criminal as

well as civil liabilities. An elderly or dying person may be

troubled far more by a loved one’s possible incarceration

than by diminution of an inheritance caused by some civil

sanction. Especially given the increasing utilization of

criminal law as a means of commercial and ethical regula-

tion, a client who believes that death is a not-too-distant

possibility may be loath to speak to a lawyer about crim-

inal problems involving friends, family or close asso-

ciates if advised that confidentiality evaporates upon his or

her demise.

The court of appeals attempted to distinguish between

criminal liability, which “will have ceased altogether [after

death],” and civil liability, which “characteristically con-

tinues” and which clients would wish to avoid in order

to “preserve their estates [after death].” Pet. App. 6a.

But as a practical matter, civil and criminal liability can-

not be separated so easily. Disclosures made in the crim-

inal context could be used in related civil matters, and a

client’s estate may be decimated as a result of criminal

proceedings after his or her death. For example, a child's

drug activities could lead to civil forfeiture of estate

property. See, United States v. One Parcel of Property, at

31-33 York Street, 930 F.2d 139 (2d Cir. 1991) (house

belonging to mother forfeited because sons used it for drug

sales); cf. Bennis v. Michigan, 516 U.S. 442 (1996)

(automobile partially owned by wife forfeited because hus-

band used it for illegal sexual activities). Moreover, dis-

closure could cause investigation, prosecution, or convic-

tion of an heir of the deceased client, which could result

in fines or attorney fees that deplete the portion of the

estate left to that heir.

Thus, even if the court of appeals were right in its im-

plicit counter-intuitive assumption that clients would care

about the economic, but not the criminal, consequences

of posthumous disclosure on friends and family, in the

real world criminal liability may have severe economic

consequences. Moreover, if the court of appeals were

correct in holding that a plausible claim of necessity in

the criminal context allows posthumous disclosure, scant

reason exists to deny it where a party in civil litigation

plausibly claims the evidence is critical. Upholding the

court of appeals’ decision inevitably will lead to deteriora-

tion of the privilege in both the criminal and civil spheres.

5. The balancing test fashioned by the court of ap-

peals does not ameliorate the damage inflicted on attorney-

client confidentiality. The client is unlikely to be reas-

sured when told that the conversation will be confidential

except for statements whose “relative importance” to the

prosecutor is “substantial.” Pet. App. 10a. “Making 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 priv"ege.” Jaffee

v. Redmond, supra, 518 U.S. at 17 (1990) (patient-

therapist privilege). Under the court of appeals’ balanc-

ing test, the trial judge is most likely to perceive a need

for privileged information in precisely those situations

where the client would be most concerned about the crim-

inal ramifications of disclosure on family, friends or asso-

ciates. At the least, such a balancing test renders the

attorney-client privilege uncertain, and “[a]n uncertain

privilege is little better than no privilege at all.” Upjohn

Co. v. United States, supra, 449 U.S. at 393.

6. There is no merit to the court of appeals’ argument

that the privilege already is so beset with exceptions that

one more will make little difference. Pet. App. 8a-10a.

The court cited the so-called “crime-fraud” exception, but

for this exception to apply “the client must have made or

received the otherwise privileged communication with the

intent to further an unlawful or fraudulent act.” In re

Sealed Case, 107 F.3d 46, 49 (D.C. Cir. 1997). In addi-

tion, “the client must have carried out the crime or fraud.”

Id.* A client will know whether he or she consults an

attorney to further a criminal or fraudulent scheme. And

a client will know whether he or she, after recciving legal

advice, has proceeded to commit a crime or fraud. Clients

who are seeking advice in an attempt to comply with the

law, or to lessen the consequences of past violation, are

unlikely to be deterred from candor by advice that con-

fidentiality may be destroyed by an intent to commit a

future crime or fraud, followed by actual commission of

the intended wrongdoing. The same cannot be said about

an elderly, severely ill or suicidal client who is told that

confidentiality will perish with death.

The court of appeals also invoked the “ubiquitous ex-

ception for litigation between persons claiming under the

decedent” (Pet. App. 9a)—otherwise known as the testa-

mentary exception. But disclosure is allowed in testamen-

tary disputes for the purpose of determining the decedent's

intent. Glover v. Patten, 165 U.S. 394, 406-08 (1897);

United States v. Osborn, supra, 561 F.2d at 1340 n.11.

“[I]}f the decedent could be asked, he would want to waive

the privilege so that the lawyer could dispose of the prop-

erty according to his wishes.” Hazard and Hodes, The

Law of Lawyering, § 1.6:101 at 131 n.5.7 (1998). An

exception designed to implement client intent does not

support creating another exception to thwart it. Indeed,

*°“In other words, the [crime-fraud] exception does not apply

even though, at one time, the client had bad intentions. Otherwise,

‘it would penalize a client for doing what the privilege is designed

to encourage—consulting a lawyer for the purpose of achieving

law compliance.’” Jn re Sealed Case, supra, 107 F.3d at 49, quot-

ing Restatement of the Law Governing Lawyers, § 142 comment c,

at 461 (Proposed Final Draft No. 1, 1996).

Glover, the leading case on the testamentary exception, is

premised on the assumption that, except in that context,

the privilege applies after death.

To be sure, as the court of appeals noted, there may be

cases where implementation of testamentary intent necessi-

tates disclosure of embarrassing information, such as the

existence of an illegitimate child. Pet. App. 9a. But it

is fair to presume that the client would have wanted his

or her testamentary intent fulfilled, even at the cost of an

embarrassing disclosure. By contrast, disclosure in crim-

inal proceedings about the client’s family, friends or as-

sociates is not designed to implement the client’s intent,

and may have far more drastic consequences than mere

embarrassment or hurt feelings. In that situation, a court

cannot presume that, if the “decedent could be asked, he

would want to waive the privilege.” Hazard and Hodes,

supra.

Finally, the court of appeals refers to decisions suggest-

ing that criminal defendants in some situations may have

a constitutional right to obtain and use as evidence other-

wise privileged exonerating statements. Pet. App. 10a, cit-

ing dicta in John Doe Grand Jury Investigation, supra,

562 N.E.2d at 71-72; South Carolina v. Doster, supra, 284

S.E.2d at 220. There also are decisions by this Court

holding that certain privileges created by state statute

must yield to a defendant's constitutional right to confront

or to obtain exculpatory information.” These cases at

*® The governing statute in New York creates an exception from

the testamentary rule for any privileged communication “which

would tend to disgrace the memory of the decedent.” N.Y.C.P.L.R.

§ 4503(b) (McKinney's 1992).

% Pennsylvania v. Ritchie, 480 U.S. 39 (1987); Davis v. Alaska,

415 U.S. 308 (1974). See also United States v. Scheffer, 118 S.Ct.

1261, 1264 (1998), where this Court (in a context not involving a

privilege) said that exclusion of evidence may be “unconstitution-

ally arbitrary or disproportionate” where it “has infringed upon a

weighty interest of the accused.”

least suggest that courts may be inclined to find appro-

priate ways to protect a defendant’s constitutional rights

where privilege is claimed.”

But this case involves not a criminal defendant, but a

prosecutor's attempt to obtain privileged evidence. The

Court can decide the present matter without reaching the

different issue of a defendant's possible constitutional right

to privileged material.” If such a right exists, it would

reflect our constitutional system’s particular concern in

avoiding jailing the innocent—a concern that affords crim-

inal defendants unique rights.** To allow a prosecutor to

break the privilege on the ground that a grand jury’s con-

stitutional right to investigate is on a par with possible

constitutional rights of a criminal defendant would be a

radical, problematic step fraught with unforeseen conse-

quences.

51 However, several state cases refused to allow an attorney to

testify as to confidential communications from a deceased client,

even though the evidence was sought to assist in the defense of a

criminal prosecution: Mayberry v. Indiana, 670 N.E.2d 1262 (Ind.

1996); People v. Modzelewski, 611 N.Y.S.2d 22 (N.Y. App. Div.

1994); Arizona v. Macumber, 544 P.2d 1084, 1086 (Ariz. 1976),

cert. denied, 439 U.S. 1006 (1978); People v. Pena, 198 Cal. Rptr.

819, 828-29 (Cal. Ct. App. 1984); Cooper v. Oklahoma, 661 P.2d

905, 907 (Okla. Crim. App. 1983); South Carolina v. Doster, 284

S.E.2d 218, 220 (S.C.), cert. denied, 454 U.S. 1080 (1981). Com-

pare, Valdez v. Winans, 738 F.2d 1087 (10th Cir. 1984), discussed

at n. 6 supra. But see District Attorney v. Magraw, 628 N.E.2d

24 (Mass. 1994); Arizona v. Gause, 489 P.2d 830 (Ariz. 1971),

vacated on other grounds, 409 U.S. 815 (1972); and Wyoming v.

Kump, 301 P.2d 808 (Wyo. 1956) where, because of conflict or lack

of authority, courts refused to allow a husband accused of murder-

ing his wife to assert her attorney-client privilege.

2 Compare Jaffee, supra, 518 U.S. at 18.

* For example, the prosecution must prove its case beyond a rea-

sonable doubt; the defendant, innocent until proven guilty, may

stand mute. The prosecution cannot appeal an acquittal; the de-

fendant may appeal a conviction.

There is also a basic flaw in the argument that one

more exception to the privilege should not be unduly in-

jurious, given those that exist. Despite the extant excep-

tions, the attorney-client privilege still is vital to our sys-

tem of justice. All citizens—including the elderly and

seriously ill—still have a right to talk to an attorney in

confidence. The courts still have a paramount interest in

assuring that clients tell their attorneys the whole truth.

Most attorneys still take seriously their professional obli-

gation to preserve confidences. Contrary to the court of

appeals’ conclusion, in most circumstances “belief in an

absolute attorney-client privilege” is not, and should not

be, “illusory.” Pet. App. 8a. The court of appeals’ rea-

soning can only further a progressive erosion of the priv-

ilege, as each added exception fuels the argument that

yet one more can do little additional harm.

Il. ATTORNEY NOTES TAKEN AT AN INITIAL

CLIENT INTERVIEW ARE ENTITLED TO THE

VIRTUALLY ABSOLUTE WORK PRODUCT PRO-

TECTION AFFORDED AN ATTORNEY’S MENTAL

IMPRESSIONS.

The court of appeals’ determination that the notes at

issue are not protected by the heightened work product

standard rests on the apparently conclusive presumption

that an attorney, in an initial client interview, is a passive

note-taker and exercises no professional judgment in

choosing what to record. Even Independent Counsel, in

his opposition to the petition for a writ of certiorari, de-

clined to defend this bizarre notion, which is contrary to

existing law, the facts of this case, and the experience of

the seasoned practicing attorneys whose views are ex-

pressed here by amici attorney associations.

1. The work product privilege “shelters the mental

processes of the attorney, providing a privileged area

within which he can analyze and prepare his client’s case.”

United States v. Nobles, 422 U.S. 225, 238 (1975). A

lawyer preparing a case must “assemble information, sift

what he considers to be the relevant from the irrelevant

facts, prepare his legal theories and plan his strategy with-

out undue and needless interference.” Hickman v. Taylor,

329 U.S. 495, 511 (1947). If materials reflecting the

lawyer’s thoughts were open to opposing counsel, “much

of what is now put down in writing would remain unwrit-

ten.” Jd. “Inefficiency, unfairness and sharp practices

would inevitably develop in the giving of legal advice and

in the preparation of cases for trial... . And the inter-

ests of the clients and the cause of justice would be poorly

served.” Id.** “Although the work product doctrine most

frequently is asserted as a bar to discovery in civil litiga-

tion, its role in assuring the proper functioning of the

criminal justice system is even more vital.” United States

v. Nobles, supra, 422 U.S. at 238.

From its adoption in the seminal decision of Hickman

v. Taylor, supra, the work product privilege has been ap-

plied to attorneys’ notes of witnesses’ oral statements. In

Hickman, the Court refused to require disclosure of “what

[the attorney] saw fit to write down regarding witnesses’

remarks.” 329 U.S. at 513. The Court also accorded work

product protection to attorney notes and memoranda of

witness interviews in Upjohn Co. v. United States, supra.

Upjohn held that “memoranda based on oral statements of

witnesses” must be given “special protection” under Rule

26. 449 U.S. at 400. The Court reasoned that “{florcing

an attorney to disclose notes and memoranda of witnesses’

oral statements is particularly disfavored because it tends

34 Some insight into what the Court may have meant by “sharp

practices” may be gained from the transcript of oral argument in

Hickman v. Taylor. When asked by Justice Jackson what the prac-

tical effect would be of requiring production of the attorney inter-

view notes, counsel responded: “In my judgment, interviews will

go unrecorded, unpleasant sources will not be pursued, and counsel

will be tempted to keep files under his bed at home.” Quoted in 1

McCormick on Evidence § 96 at 358 (4th ed. 1992).

to reveal the attorney’s mental processes.” Upjohn Co. v.

United States, supra, 449 U.S. at 399.

Hickman and Upjohn, as well as lower court cases,”

accorded heightened protection to initial witness inter-

views. The issue of work product protection for intial

client interviews has not previously arisen (presumably be-

cause client interviews, until this case, have been protected

by the attorney-client privilege). But there is even more

reason to grant heightened work product protection to

client interviews. At a witness interview, the attorney’s

principal focus likely is to elicit facts. By contrast, at a

client interview—particularly an initial interview—the at-

torney also may outline the legal situation, discuss possible

approaches, and explain the consequences and risks of

various courses of action. For this reason, the notes of a

client interview, even more than a witness interview, are

likely to be permeated by the “attorney’s mental proc-

esses.” Upjohn Co. v. United States, supra, 449 U.S. at

687.

2. The court of appeals held that “the ordinary Rule

26(b)(3) standard should apply” in determining whether

an attorney’s notes of an initial client interview must be

produced to the prosecutor. Pet. App. 14a. Under that

standard, the prosecutor obtains access to work product

upon showing a “substantial need” for the material and in-

ability to obtain the “substantial equivalent” of the mate-

rial by other means “without undue hardship.” Fed. R.

Civ. Proc. 26(b)(3). But application of the ordinary

Rule 26(b)(3) standard to attorney notes of initial client

interviews transgresses Upjohn and the policies underlying

the work product privilege.

The magistrate in Upjohn, as did the court of appeals

here, applied the “substantial need” and “without undue

SE .g., In re Allen, 106 F.3d 582, 607 (4th Cir. 1997), cert.

denied, 118 S. Ct. 689 (1998); Cox v. Administrator, U.S. Steel, 17

F.3d 1886, 1421-23 (11th Cir.), modified on reh’g on other grounds,

30 F.3d 1347 (11th Cir.), cert. denied, 513 U.S. 1110 (1994).

hardship” tests of the ordinary Rule 26(b)(3) standard.

449 U.S. at 401. This Court reversed, holding that “a far

stronger showing of necessity and unavailability by other

means” is required. 449 U.S. at 401-2. The Court recog-

nized that the lower courts had split on the degree of

protection allowed attorney interview notes of witness in-

terviews, with some courts holding that “no showing of

necessity can overcome protection of work product which

is based on oral statements from witnesses,” and others

holding that such material is entitled to “special protec-

tion.” ** But the Court concluded that it need not resolve

this conflict, because under either test the lower court

had erred in applying the ordinary Rule 26(b)(3) stand-

ard. 449 US. at 401-02.

Subsequent lower court decision have followed Upjohn,

holding that attorney interview notes are producible, if at

all, “only in very rare and extraordinary circumstances.”

In re Allen, supra, 106 F.3d at 607; Cox v. Administrator,

supra, 17 F.3d at 1421-23 (same); In re Sealed Case,

676 F.2d 793, 809-10 (D.C. Cir. 1982) (“extraordinary

justification” required for disclosure) .”

8* 449 U.S. at 401 (emphasis in original), citing Jn re Grand Jury

Proceedings, 473 F.2d 840, 848 (8th Cir. 1973) (absolute protec-

tion) ; Jn re Grand Jury Investigation, 412 F. Supp. 943, 949 (E.D.

Pa. 1976) (same); In re Grand Jury Investigation, 599 F.2d 1224,

1231 (3d Cir. 1979) (disclosure in “rare situations” ).

37 Independent Counsel previously has relied on two cases, but

they do not support the court of appeals’ application of a lesser

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

Cir. 1979), the Third Circuit rejected absolute protection, conclud-

ing that attorney interview notes are producible in a “rare situa-

tion.” 599 F.2d at 1231. It found the “rare situation” standard met

in part because of the interviewee’s death and in part for other

reasons. 599 F.2d at 1231-32. In In re John Doe Corp., 675 F.2d

482, 493 (2d Cir. 1982), the Second Circuit, after noting that “the

mental processes and legal theories of the interviewing attorney .. .

are entitled to the greatest protection available under work-product

immunity,” held that, under the circumstances of that case, produc-

tion of attorney interview notes would not reveal the attorney’s

mental processes.

The court of appeals asserted that Upjohn “did not

decide whether factual elements embodied in [attorney

interview] notes should be accorded the virtually absolute

protection that the privilege gives to the attorney's mental

impressions.” Pet. App. 12a. It rested this conclusion on

its assumption that the factual portions of the interview

notes at issue in Upjohn were covered by the attorney-

client privilege and thus were not involved in the Court's

work-product ruling. Pet. App. 12a-13a. In fact, the in-

ue ‘ew notes on Upjohn included notes of interviews with

secu former employees of the client company and this

Court expressly said that its work product “discussion will

also be relevant to counsel’s notes and memoranda of in-

terviews with [these seven] should it be determined [by

the lower courts on remand] that the attorney-client privi-

lege does not apply to them.” 449 U.S. at 394 n.3, 397

n.6.

Moreover, the Court’s reasoning in Upjohn made clear

that the special protection afforded attorneys’ “mental

processes” extended to the factual portion of the interview

notes. The Court equated “the attorney’s mental proc-

esses” with “what he saw fit to write down,” including

“what [the attorney] considered to be the important ques-

tions, the substance of the responses to them... .” 449

U.S. at 399, 400 n.8 (quoting Hickman v. Taylor, supra,

329 U.S. at 516-17). The Court also relied on Justice

Jackson’s statement in Hickman that attorney interview

notes are protected partly because they are in the attorney’s

“language, permeated with his inferences.” Hickman,

supra, 329 U.S. at 516-17 (Jackson, J., concurring),

quoted in Upjohn, 449 U.S. at 399-400.

The notes taken by Mr. Hamilton were not verbatim,

but were cast in his language. They reflect Mr. Hamilton's

own “selections, interpretations, and interpolations”; as

such, the notes “could not fairly be said to be the witness’

own statement.” Palermo v. United States, 360 U.S. 343,

350 (1959). Because they contain the attorney’s language

and selections rather than Mr. Foster’s statement, they

would not be a “statement” producible under the Jencks

Act.“ For much the same reason, the notes are entitled

to special protection under the work product privilege,

reflecting as they do the attorney’s perceptions of the case

and his “mental processes” as he began to review the case.

Applying the ordinary standard of need of Rule 26(b)

(3) to attorney interview notes has the effect of destroying

the “privileged area within which [the attorney] can ana-

lyze and prepare his client’s case.” United States v.

Nobles, supra, 422 U.S. at 238. At the time of taking

interview notes, an attorney cannot possibly know how a

court might view a prosecutor's assertion of “need” or

unavailability of “substantially equivalent” material “with-

out undue hardship.” If disclosure hinges on application

of those tests under the ordinary Rule 26(b)(3) standard,

the attorney and client could be at per‘? «henever the at-

torney takes interview notes, The .»e ’<*le result would

be that “much of what is now pw’ ‘a in writing would

remain unwritten”—degrading the quality of case prepara-

tion and, ultimately, the administration of justice. Hick-

man v. Taylor, supra, 329 U.S. at 511.

3. The court of appeals apparently believed that the

damaging effect of applying the ordinary Rule 26(b) (3)

standard could be limited by confining it to attorney notes

of initial client interviews. Pet. Ap. 13a. But it is particu-

larly important not to discourage attorney note-taking at

this stage. .'\s recognized by a widely-used manual on trial

technique, an accurate record of the initial interview is

important because “[yJour client will never have a better

58 See, Palermo v. United States, 360 U.S. 343, 352-58 (1959)

(“summaries of an oral statement which evidence substantial selec-

tion of material .. . are not to be produced”); United States v.

North American Reporting, Inc., 761 F.2d 735, 740 (D.C. Cir.)

(notes “contain[ing] incomplete, episodic statements” are not wit-

ness statements) cert. denied, 474 U.S. 905 (1985); United States

v. Fowler, 608 F.2d 2, 6 (D.C. Cir. 1979) (“short [and] very cryp-

tic,” “incomplete” notes “set{ting] forth a few references to scat-

tered facts” are not witness statements).

grasp of the pertinent facts than at this stage.” Lane,

Goldstein Trial Technique § 1.03 at 3 (3d ed. 1996).

Adequate notes taken “while the matter is fresh in the

client’s mind will prevent a later sketchy and perhaps in-

complete recall of the facts” and “will prove extremely

helpful, particularly where the trial takes place several

years in the future.” /d., § 1.05 at 4.

Moreover, a client’s subsequent recollections may be

tainted by the “education” he or she acquires, during the

course of litigation, as to what the facts “should” be in

order to prevail. A lawyer who has taken adequate writ-

ten notes at the initial interview will be better equipped to

ensure that the client does not deviate from the truth to

accommodate his or her developing perception of legal or

tactical advantage. A rule that hampers the ability of a

lawyer to perform this function only can injure the admin-

istration of justice. Hickman v. Taylor, supra, 329 U.S.

at 511.

Nor can the danger of discouraging note-taking at initial

client interviews be ameliorated by redaction, as the court

below suggests. Pet. App. 14a. The redaction procedure

presumes that the policies of the work product privilege

are satisfied if explicit expressions of the attorney's opin-

ions and mental impressions are protected from disclosure.

But attorney interview notes also should be protected be-

cause disclosure would “tend[] to reveal the attorney's

mental processes” by revealing “ ‘what he saw fit to write

down regarding witnesses’ remarks.’” Upjohn Co. v.

United States, supra, 449 U.S. at 399, quoting Hickman

v. Taylor, supra, 329 U.S. at 513. Redacting explicit

statements of opinion from attorney notes is thus insuffi-

cient to protect the attorney’s mental processes.

4. The court of appeals was particularly misguided in

creating an apparently conclusive presumption that a law-

yer taking notes at an initial interview “has not sharply

focused or weeded the materials,” thus rendering inappro-

priate the heightened protection accorded to “the attorney's

mental processes.” Upjohn Co. v. United States, supra,

449 U.S. at 399. This argument ignores the reality of the

practice of law. As amici attorney associations confirm, it

is totally unrealistic to assume that the lawyer plays a pas-

sive role in an initial interview, simply recording facts to

be shaped into legal theories at some later stage. Instead,

the initial interview serves the dual purpose of “obtaining

an exhaustive account of the client’s predicament and out-

lining available solutions.” Lane, Goldstein Trial Tech-

nique § 1.03 at 3 (3d ed. 1996) (emphasis added). At

the initial interview, the attorney’s task is not only to elicit

facts, but also to “explore various approaches and possible

action to be taken.” /d., § 4.02 at 5. Inevitably, as part

of that process, the lawyer will wish to explore certain

factual areas more intensely than others. And in record-

ing the interview, the lawyer will emphasize certain factual

elements over others, depending on his or her concept of

what the problem areas are and what approaches might

be fruitful. For these reasons, an attorney’s account of

an initial interview typically is cast “in language perme-

ated with his inferences.” Hickman v. Taylor, supra, 329

U.S. at 516-17 (Jackson, J., concurring).

The court below argued that an initial client interview

is not deserving of special protection because the lawyer

may encourage the client to engage in “a fairly wide-

ranging discourse.” Pet. App. 13a. While this may be

true, the issue is not what the client says at the initial

interview, but which portions of the client’s “discourse”

the attorney chooses to record and the words he or she

selects to accomplish this. It is these choices the attorney’s

notes reflect and the work product privilege protects. Up-

john Co. v. United States, supra, 449 U.S. at 399.

The court of appeals’ presumption that ths lawyer is not

sufficiently knowledgeable to play an active role at the

initial interview also ignores the record of this case. Mr.

Hamilton came to the meeting with Mr. Foster with con-

siderable experience in highly-publicized, “political” cases.

As many attorneys do, he prepared for the “initial inter-

view”; the record shows that he had read and taken notes

on the White House’s report on the Travel Office matter.

Pet. App. 40, 41.

Moreover, as Judge Tatel observed, the notes them-

selves demonstrate that Mr. Hamilton exercised his pro-

fessional judgment during the interview. “In two hours, he

created only three pages of notes,” which were not ver-

batim but contained only what “he thought significant,

omitting everything else.” Pet. App. 3la. Three pages

of notes, to memorialize a two-hour interview, must be the

product of a high degree of professional selectivity. The

notes, as Judge Tatel observed, bear various markings

(“check marks and question marks”) and “clearly repre-

sent the opinions, judgments, and thought processes of

counsel.” Id.

The record thus fully supports the district court's factual

finding that Mr. Hamilton’s “written notes reflect the men-

tal impressions of the lawyer... .” Pet. App. 42a. The

court of appeals’ conclusion to the contrary is unsup-

ported by the record and fatally infected by the erroneous

conclusive presumption that lawyers do not exercise pro-

fessional judgment when they take notes during initial

client interviews.

5. The court of appeals’ work product decision, when

coupled with its ruling on the attorney-client privilege, will

have dire practical results. If clients are advised that their

disclosures to an attorney might be unprotected after

death, they may not talk candidly. If lawyers are advised

that their notes of initial client interviews may be avail-

able to a grand jury, they may cease taking notes. The

net result will be to degrade the administration of justice

—lawyers are less likely to know the full truth about their

clients’ conduct and will not have a written record of what

their clients initially said. And there will be no offsetting

benefits, because grand juries will not benefit from client

statements that are not made and notes that are not taken.

As Judge Tatel’s dissent correctly observed, the court of

appeals’ “two new holdings—one chilling client disclosure,

the other chilling lawyer note-taking—will damage the

quality of legal representation without producing any

corresponding benefits to the fact-finding process. Pet.

App. 31a-32a.

CONCLUSION

The judgment of the court of appeals should be re-

versed.

Respectfully submitted,

JAMES HAMILTON *

ROBERT V. ZENER

SwWIDLER & BERLIN, CHARTERED

3000 K Street, N.W., Suite 300

Washington, D.C. 20007

(202) 424-7500

Counsel for Petitioners

Swidler & Berlin and

James Hamilton

April 29, 1998 * Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.