# Petitioners Brief — Swidler & Berlin v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1998
- **Citation:** 524 U.S. 399

## Text

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

og
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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

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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.

ii

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)

iv
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

v

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

33
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

vi
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,

28
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

ix
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.

2

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.

=

|

3

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

4

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

5

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-

6

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 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.

20

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).

21

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.

23

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.

24

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).

25

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.

26

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.

27

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).

28

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.”

29

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.

30

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

31

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).

32

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).

33

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.

34

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

35

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).

36

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

37

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.

38

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

39

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0156%3A09. Public record. Not legal advice.