Reply Brief — Swidler & Berlin v. United States

JUN 4 1998

No. 97-1192 OFFICE oF cunts

In THE

Supreme Court of the United Staten

OCTOBER TERM, 1997

SwWIDLER & 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

REPLY BRIEF FOR PETITIONERS

JAMES HAMILTON *

ROBERT V. ZENER

SWIDLER & BERLIN, CHARTERED

3000 K Street, N.W., Suite 300

Washington, D.C. 20007

(202) 424-7500

Counsel for Petitioners

Swidler & Berlin and

James Hamilton

June 1, 1998 * Counsel of Record

WILSON - Eres PrinTING Co.. Inc. - 789-0096 - WASHINGTON. D.C. 20001

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..............22....2..-.c0..:seeeseeeees

I. ATTORNEY-CLIENT PRIVILEGE |...

II.

A.

B.

Confidentiality is necessary to foster candor

between client and attorney 00.00.0000...

There is no basis for Independent Counsel’s

assertion that the chilling effect of posthu-

mous disclosure vould be “marginal”

. There is no support for distinguishing be-

tween criminal and civil proceedings in ap-

plying the attorney-client privilege ...........

The decision discriminates against the

Existing law overwhelmingly supports sur-

vival of the privilege after death; the com-

mentators are split ................. AEE TRE es

Independent Counsel cannot rely on possible

defendant rights to enhance his ability to

GES GI cccetenicteiernsnesetadiciaditaecicnies Sian

WOE: RIS ccccccsesccscinvniicsdestnnsibulieisiicilicetsie

A.

The client’s death does not terminate the

work product privilege, which also belongs

EIEIO EEA RE

There is no basis for reversing the district

court’s finding that the notes reflect the at-

torney’s mental impressions; the grand

jury’s need does not outweigh the privilege.

GIF UEIIE oceesenssvsricmcstiinicensetenthiteitniinsasdnkiaalilacial

10

15

17

17

19

ii

TABLE OF AUTHORITIES

CASES Page

Arizona v. Gause, 489 P.2d 830 (Ariz. 1971),

vacated on other grounds, 409 U.S. 815 (1972).. 16

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

Arizona v. Macumber, 582 P.2d 162 (Ariz. 1978) .... 16

Bergsvik v. Bergsvik, 291 P.2d 724 (Or. 1955)... 11

Blackburn v. Crawfords, 70 U.S. 175 (1865)... 10

Brady v. Maryland, 373 U.S. 83 (1963) ......... 5 ria 15

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

Clark v. Turner, 183 F.2d 141 (D.C. Cir. 1950)... 11

Cohen v. Jenkintown Cab Company, 357 A.2d 689

(Pa. Super. Ct. 1976) .. 14

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

App. 1983) . iin)

In re Cunnion’s Will, 94 N. E. 648 (N. Yy. 1911)... ae 11

Davis v. Alaska, 415 U.S. 308 (1974) .........000........... 16

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

EE SSIES ET RE 16

Doherty v. O’Callaghan, 31 N.E. 648 (Mass. 1892) .. 11

Doyle v. Reeves, 152 A. 882 (Conn. 1981) ............... 11

Fisher v. United States, 425 U.S. 391 (1976)....... : 2

Glover v. Patten, 105 U.S. 394 (1897) 00.0.0... 10, 11

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

EE See OR 19

In re Grand Jury Proceedings, D.D.C. May 27,

1998 (Misc. Nos. 98-095, 98-096 & 98-097

ES 17

In re Grand Jury Subpoena, 112 F.3d 910 (8th

Cir.), cert. denied, 117 S. Ct. 2482 (1997) .......... 17

Herrera v. Collins, 506 U.S. 390 (1998) 0.000000... 16

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

appeal denied, 679 N.E.2d 380 (Til. 1997) .......... 10-11

Holty v. Landauer, 52 N.W.2d 890 (Wis. 1952)...... 11

Hugo v. Clark, 99 S.E. 521 (Va. 1919) ................. 11

Jaffee v. Redmond, 508 U.S. 1 (1996) 0. 16

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

1982) ... 19

In re John Doe Grand Jury “Investigation, “562

N.E.2d 69 (Mass. 1990) ..............---000.0..... 7, 9, 12, 14-15

a

iii

TABLE OF AUTHORITIES—Continued

Page

Moody v. IRS, 654 F.2d 795 (D.C. Cir. 1981)........ 17

Morrison v. Olsen, 487 U.S. 654 (1988) 00000. 7

Northwest Airlines v. County of Kent, Michigan,

fF FO a ee eee 1,2

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

EES Sn NE Ce SN oe SO. I BOE 12

Rock v. Arkansas, 483 U.S. 44 (1987) .....000000000..... 16

In re Sealed Case, 29 F.21 715 (D.C. Cir. 1994)... 18

In re Sealed Case, 676 F.2d 793 (D.C. Cir. 1982).. 17

In re Special September 1978 Grand Jury, 640

os f£ J | & £=-e errr Ses 17-18

Succession of Norton, 351 So. 2d 107 (La. 1977)... ll

Trammel v. United States, 445 U.S. 40 (1980)... 3

United States v. Nixon, 418 U.S. 683 (1974) ........ 8

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

EE VE ER eee Pe 17

United States v. Scheffer, 118 S. Ct. 1261 (1998). 16

United States v. Zolin, 491 U.S. 554 (1989) ....... 2

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

TINE ccccicasintesinscicesticteninibattdhisdaentteadsiintgeiatlitsianttibigs taki iat 8

Upjohn Co. v. United States, 449 U.S. 383 (1981). 2, 13,

Wyoming v. Kump, 301 P.2d 808 (Wyo. 1956)... 16

STATUTES

Pe Bike CEI, Te GID CIID acsncacceecccccncsececsseesecsnccssintess 15

|, SS eee siheshstiibiticed 9

SE tii inetisiathpicasstensinaminieitnnctaiecninibateticcemtenpminiamndalts 9

16 U.S.C. § 16 .................. sonianeniatteinmnsnmnnsantiiicsnitatmamsiinipangl 9

a ),, ee seesnstpunnnibadiiincalieies 9

I crsertiitcctenisicninincctichiensinensatininsinitenitanianebiemeiiibiin 9

NII tdsinsidnsiinetiineininistncmnentsdiiesnicieminasaniicioninsntinginis 9

UBC. § 608 ..................... pinipceienneiijeintaliatia singe 8

BD UAAG, § SEGRE) 2.2... --02002.02222.220 siatigcisssincidiiiiidiiatn 8

I i ininreeninsrsettignatitemtnathiniaeniiniiale nieaiath 8

IS USC. § 1906.............................. spunepeannanapsasentaminian 9

a ea ninaitstsiniieabiimennsiadiiiags 8

26 U.S.C. § 7301 ......... Se ns eS a 8

Se, Se GS GD ecernencncestnneesnncensnnenpenecenemsnenecanenes 11

iv

TABLE OF AUTHORITIES—Continued

MISCELLANEOUS

ABA Model Rules of Professional Conduct, Rule

1.6(b) (1) . Be

ABA, BNA, Lawyers’ ” Manual on ” Professional

ESCA LS AIDA AE

Epstein, The Attorney-Client Privilege and the

Work Product Doctrine (1997) ..................

Fischel, Lawyers and Confidentiality, 65 U. Chi. _

ef aa a a mf

Larkin, Federal Testimonial Privileges (1998) .....

1 McCormick on Evidence (4th ed. 1992) ...............

2 Mueller & Kirkpatrick, Federal Evidence (2d ed.

1994) .

Stern & Gressman, Supreme ‘Court ‘Practice (7th

|) ee a a a a or

United States Sentencing Commission, Federal

Sentencing Guidelines Manual (1998 ed.) ..........

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

Wolfram, Modern Legal Ethics (1986) ................

24 Wright & Graham, Federal Practice and Proce-

SS

Page

9

13

19

ee

In THE

Supreme Court of the United States

OcToBeR TERM, 1997

No. 97-1192

SwiDLerR & BERLIN AND JAMES HAMILTON,

7 Petitioners,

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

REPLY BRIEF FOR PETITIONERS

Faced with indefensible rulings by the court of appeals,

Independent Counsel advances different positions. As to

attorney-client privilege, he disavows the court of appeals’

balancing approach, instead arguing flatly that “the attor-

ney-client privilege does not apply in federal criminal pro-

ceedings when the client is deceased.” Br. 9 (upper case

omitted). Indeed, he specifically asks this Court to order

production of relevant portions of the notes, although the

court of appeals required the district court to engage in

a balancing process before ordering production. Pet. App.

10a-lla, 13a-14a; compare Br. 41 n.40, 49. Because In-

dependent Counsel did not file a cross petition, his request

to alter the- judgment is improper. Northwest Airlines v.

County of Kent, Michigan, 510 U.S. 355, 364-65 (1994);

Stern & Gressman, Supreme Court Practice (7th ed.)

§ 6.35.

As to work product, Independent Counsel does not at-

tempt to defend the court of 2ppeals’ holding that notes of

an initial client interview cannot reflect the attorney's

2

mental processes, arguing instead that the work product

privilege, like the attorney-client privilege, expires with the

client’s death. He also seeks an order directing production

of all relevant portions of the notes, a relief broader than

that entered by the court of appeals. Br. 49; Pet. App.

12a. This he cannot do without a cross-petition. North-

west Airlines, supra.

In any event, Independent Counsel's positions, like those

of the court of appeals, should be rejected.

I. ATTORNEY-CLIENT PRIVILEGE.

A. Confidentiality is necessary to foster candor be-

tween client and attorney.

1. Independent Counsel argues that “the rule that the

privilege does not apply after death in criminal proceed-

ings should cause no chilling effect whatsoever on appro-

priate attorney-client communications—that is, on clients

who intend to testify truthfully or assert the Fifth Amend-

ment.” Br. 39 (emphasis in original). In other words,

his position is that only those who intend to commit per-

jury will be restrained by such a rule. This argument,

however, is contrary to case law, common sense, and the

experience of the legal profession reflected in the briefs

of amici attorney associations, which Independent Counsel

ignores.

The purpose of the attorney-client privilege is “to en-

courage full and frank communication between attorneys

and their clients.” Upjohn Co. v. United States, 449 U.S.

383, 389 (1981); see also United States v. Zolin, 491

U.S. 554, 562 (1989); Fisher v. United States, 425 US.

391, 403 (1976). The privilege promotes free and unre-

strained conversations by ensuring that these conversations

are, and remain, “off the record,” and is intended to bene-

fit al! clients in need of legal advice. Common sense and

the legal profession's experience teach that even truthful

people may need to talk to a lawyer in confidence and that

those conversations may well be chilled by fear of dis-

closure after death. The rule that the privilege survives

death is not intended to benefit the perjurer.

3

Independent Counsel recognizes the “importance” of the

attorney-client privilege when the client asserts the Fifth

Amendment privilege. Br. 33. However, he suggests that,

because the deceased client cannot be prosecuted, the

client planning to assert this privilege would not be chilled

by the prospect of the attorney's revealing their conversa-

tions after death. This disregards the obvious harm such

disclosure could have on the client’s reputation and the

fate of others.

Independent Counsel contends that federal law recog-

nizes the attorney-client privilege in cases where the client

testifies for two reasons. Br. 35-37. First, if the client

testifies there is little need for the attorney also to do so. ~

Second, to allow the attorney to testify would create a

litigation side-show focusing on discrepancies between the

attorney’s and the client’s testimony. But Independent

Counsel overlooks the most salient reason for recognizing

the privilege: to encourage candid conversations between

the attorney and the client. Fear of revelation of those

candid conversations after death would chill them.

To abandon the need for candor as the basic reason for

the privilege would throw its legitimacy into doubt even

for the living. The litigation side-show rationale is insuffi-

cient to support the privilege because it would not protect

the privilege in pretrial discovery. Moreover, neither that

rationale nor the claim that the attorney’s testimony is

unnecessary justifies the privilege when the client is un-

available to testify because of flight, illness, or loss of

memory. The Fifth Amendment analogy is an inadequate

justification because it has no application in purely civil

matters. Encouragement of candor, therefore, remains the

chief reason for the privilege.

Clients must be able to talk freely and without restraint

with attorneys “if the professional mission is to be carried

out.” Trammel v. United States, 445 U.S. 40, 51 (1980).

The client who is overly cautious and circumspect may fail

to reveal matters the lawyer should know. Lawyers doing

their job encourage clients freely to express their supposi-

tions, emotions, doubts, fears, speculations, and the like.

4

Once the client has freely confided in the lawyer, the

lawyer can help sort the relevant from the irrelevant, sepa-

rate what the client actually knows from guesswork and

speculation, assist the client in thinking through apparent

inconsistencies, and prod the client into testing personal

recollections against available documents and the state-

ments of others. After that process, the lawyer will have

an accurate basis for giving advice, and the client will be

better equipped to present a cogent, truthful account, if

testimony is required.! But this process—which is fully

appropriate and replicated daily in law offices across the

country—cannot operate effectively unless the client is first

able to confer with a lawyer in confidence without re-

straint.

The difficulty of sorting a client's surmises and specula-

tions from actual knowledge is particularly acute when the

client speaks about the activities of friends, family or as-

sociates. Here suspicion may be more prevalent than

knowledge. A client knowing that the conversation with

counsel is confidential can—and often should—voice all

his or her fears and suspicions about others, even if they

have little foundation. But it could well be irresponsible

to impugn others by speculation and surmise knowing that

a prosecutor or a grand jury could become privy to the

conversation. That is one reason why a person who in-

1 It is much too simplistic to say, as Independent Counsel does,

that “[t]he client who will testify truthfully . . . will simply tell

her attorney the same facts that she will disclose under oath.”

Br. 35 (emphasis in original). Anyone who has practiced law

knows that, even as to the wholly truthful client, some aspects of

the private conversations with the lawyers may differ from later

“on the record” testimony. At any given time (even just before

the client’s death) the lawyer, and perhaps the client, may not

know with any completeness what the “facts” are, particularly if

the matter is complex and involves multiple parties. We expect that

what Independent Counsel eventually wants from Mr. Hamilton is

not just “facts,” but his testimony about everything, speculations

included, Mr. Foster said to him. To allow that sort of probing

into an attorney’s recollections of a conversation with a client would

chill client candor and have pernicious effects on the practice of law

and the administration of justice.

5

tends to be truthful in later testimony must be able to

speak first w'.n a lawyer in confidence. Independent Coun-

sel’s suggestion that a client may not, in a privileged set-

ting, retain and consult a lawyer about the legal difficulties

of others (particularly those relating to his or her own

conduct) is simply wrong.”

In short, Independent Counsel's position that only in-

tended perjurers will eschew candor if they fear their con-

versations with counsel will be posthumously revealed con-

travenes reason and experience. Clients who intend truth-

ful testimony, as well as those who intend to assert their

Fifth Amendment privilege, also would be restrained.

2. Independent Counsel concedes that clients anticipat-

ing death may care about their reputatiun and about the

fate of family, friends and associates. Br. 43-44. He ar-

gues, however, that a client’s desire to protect others and

his or her own reputation does not justify nondisclosure

after death because the client could be forced to testify

about such matters before death. “[T]he information’ dis-

closed by the attorney, he says, “is the same factual infor-

mation that the client himself would have been legally re-

quired to disclose if he were alive.” Br. 44 (emphasis in

original). This argument attacks the very fundamentals

of the privilege.

The attorney-client privilege is not intended only to

protect incriminating information the client cannot be

forced to reveal. Rather, it is based chiefly on the need

to foster client candor. If a client anticipating death can-

not talk to a lawyer freely about matters implicating fam-

2 See Br. 29. Independent Counsel asserts that a person consult-

ing an attorney “to enable the attorney to advise or assist some-

one else” may not claim the privilege. Br. 45 n.45, quoting Larkin,

Federal Testimonial Privileges § 2.02 at 2-17. But a client may want

legal advice for the client’s own benefit about the activities of

friends, family and associates, either because that conduct mov

implicate the client or for other reasons. As long as the person

consulting the attorney is seeking legal advice (rather than arrang-

ing for the attorney to provide advice to someone else), he or she

is entitled to the privilege.

6

ily, friends, associates and his or her own reputation be-

cause the lawyer later might be turned into a funnel to

the prosecutors, the client might well not talk at all—and

thus there would be no information to discover. It thus

is not at all clear, as Independent Counsel argues, that

the costs of protecting attorney-client communications

after death are high, because if the privilege dissipates

upon death such communications might not be made.

As discussed above a client’s discussion with a lawyer

may be expansive, involving speculation, rumor, factual

uncertainties, and the like. That a client later could be

required to testify about certain facts after receiving pro-

fessional assistance and advice should not make such wide-

ranging conversations any less confidential. To conclude

otherwise would be to squelch the types of communica-

tions necessary for the legal system to function.

B. There is no basis for Independent Counsel's asser-

tion that the chilling effect of posthumous disclos-

ure would be “marginal.”

Independent Counsel concludes—contrary to the views

of amici attorney associations—t' at the chilling effect of

the rule he espouses would be “extraordinarily marginal.”

Br. 39. None of his arguments in this regard has merit.

1. Independent Counsel suggests that clients will not

be chilled because they will not learn about the confiden-

tiality exception he proposes. Br. 39-40. We have no

doubt, however, that any decision by this Court vitiating

the privilege after death would receive widespread public-

ity, particularly among the aged and ill.

2. Independent Counsel asserts that clients already are

chilled by the lawyer’s obligation to reveal client perjury.

As remarked, however, even truthful people often need to

talk to a lawyer in confidence. For the truthful client, fear

of what the lawyer might do if perjury occurred would not

be important. But fear of disclosure after death—partic-

ularly where the client is elderly, ill or suicidal—would

chill candor, and that is why the privilege should survive

death.

-

3. Independent Counsel rightly observes that prosecu-

tors rarely have sought disclosure of attorney-client com-

munications after the client’s death. This is the first re-

ported federal case; there is only one reported state case.

This circumstance may be because prosecutors with “the

perspective that multiple responsibilities provide” * under-

stand that the law is settled and that ultimately the gov-

ernment and law enforcement benefit if clients are candid

with their attorneys. However, if this Court holds such

evidence obtainable, federal prosecutors will have no

choice but to seek it and inhibited candor will be the

by-product.

4. Independent Counsel contends that grand jury

secrecy and admissibility rules will minimize the chilling

effect of the disclosure he seeks. But a client would be

restrained by the prospect that friends, family or associates

could be indicted as a result of disclosure, even if the

evidence that led to indictment is not admissible at trial.

Moreover, inadmissible attorney writings might be utilized

at trial, for example, to refresh recollection or to cross-

examine. Lack of admissibility would not ensure that at-

torney-client information remains confidential.

5. To disparage the chilling effect of posthumous dis-

closure, Independent Counsel repeatedly asserts that crimi-

nal prosecution after death would not affect the client’s

estate. Br. 9, 16 n.11, 22, 29. This contention rests on

the bizarre notion that persons contemplating death care

only about the magnitude of their estates and not about

whether family, friends or associates might be incarcerated

——a notion contrary to reason and experience. This asser-

tion also is demonstrably wrong, for criminal proceedings

can decimate an estate by leading to property forfeitures,

3In re John Doe Grand Jury Investigation, 562 N.E.2d 69 (Mass.

1990). In the other state cases excluding such evidence from crimi-

nal trials (cited in our principal Brief at 19 n.16), the defense

sought the evidence ; the prosecution opposed.

Morrison v. Olsen, 487 U.S. 654, 732 (1988) (Scalia, J.,

dissenting).

8

fines, restitution, and huge legal fees. Even from a purely

economic standpoint, criminal proceedings can be at least

as disastrous as civil proceedings, and both the court of

appeals and Independent Counsel concede that the privi-

lege survives death in civil proceedings because of the

effect of a contrary rule on a decedent’s estate.

C. There is no support for distinguishing between

criminal and civil proceedings in applying the

attorney-client privilege.

Independent Counsel argues that privileges that apply

in civil proceedings may not apply in criminal proceed-

ings. That may be true for certain qualified privileges,

where a balancing test applies and the interests supporting

disclosure in a criminal proceeding may be weightier than

in a civil case. See United States v. Nixon, 418 U.S. 683,

711-12 & n.19 (1974) (“President's generalized interest

in confidentiality”); Brenzburg v. Hayes, 408 U.S. 665,

688 (1972) (journalist’s privilege).6 But the argument

has no support in cases involving absolute privileges where

balancing tests are not utilized.7

The civil-criminal distinction especially fails in the con-

text of the attorney-client privilege. Lawyers frequently

5 See United States Sentencing Commission, Federal Sentencing

Guidelines Manual (1998 ed.), §§ 5E1.1 (Restitution), 5E1.2 (Fines

for Individual Defendants). Examples of statutes providing for

forfeiture as a result of criminal conduct are: 18 U.S.C. § 981 (for-

feiture for a list of offenses); 21 U.S.C. § 853 (forfeiture of assets

traceable to narcotics violations); 18 U.S.C. § 1955(d) (forfeiture

of property connected to illegal gambling) ; 26 U.S.C. § 7301 (for-

feiture of property connected to tax avoidance) ; 18 U.S.C. § 1963(e)

( forfeiture under RICO).

6 But see University of Pennsylvania v. EEOC, 493 U.S. 182, 201

(1990) (Branzburg followed in a civil enforcement proceeding).

7 Independent Counsel cites McCormick’s statement that some

state statutes deny the physician-patient privilege in criminal cases.

Br. 11, citing 1 McCormick on Evidence § 104, at 388 (4th ed.

1992). However, McCormick concedes that, “[i]n the absence of

specific limiting language, the [physician-patient] privitege will

generally be held to apply to criminal as well as civil cases.” Id.

at 388 n.4.

9

are consulted in situations where both civil and criminal

liability is possible. Matters concerning securities, tax,

antitrust, fraud or RICO laws all could involve either civil

or criminal liability.* It is nonsensical to contend, for ex-

ample, that a conversation involving a client’s liability

under the securiites laws is inviolate after death in a civil

case, but accessible by a grand jury. To attempt to ex-

plain such a dichotomy to a client hardly would foster

client candor.®

D. The decision discriminates against the dying.

Independent Counsel argues that extinguishing the privi-

lege at death would not discriminate against the dying be-

cause (1) they “most likely” would consult lawyers about

wills or property dispositions, and (2) the will contest

exception already negates the privilege. Br. 16-17, 45-46.

However, while a person near death might be concerned

about bequests and a will contest might develop (without

which the exception does not apply), the client might well

wish to consult a lawyer for some other purpose, including

grand jury investigations that might involve the client or

others. Mr. Foster, after all, did not seek out Mr. Hamil-

ton to confer about estate planning. To rob the dying of

8 See, e.g., 18 U.S.C. §§ 1963 (RICO criminal penalties), 1964

(RICO civil liabilities) ; 15 U.S.C. §§ 1, 2 (antitrust criminal penal-

ties), 15 (antitrust civil liabilities), 77k, 771 (Securities Act civil

liabilities), 77x (Securities Act criminal penalties).

% Independent Counsel argues that disclosure is needed in crimi-

nal proceedings, because nondisclosure may allow “‘a murderer . . .

still at large and likely to strike again’ to evade justice.” Br. 24

(quoting Jn re John Doe Grand Jury Investigation, supra, 562

N.E.2d at 73 (Nolan, J., dissenting) ). Present ethical rules address

public safety, allowing disclosure “to prevent the client from com-

mitting a criminal act that the lawyer believes is likely to result

in imminent death or substantial bodily harm.” ABA Model Rules

of Professional Conduct, Rule 1.6(b)(1). While these rules do not

directly concern possible_future criminal conduct by third parties,

they at least suggest that a lawyer’s ethical obligations would not

protect such information. In any event, the present case does not

raise a public safety issue, and any “public safety” exception that

might be fashioned likely would not depend on whether the client

was dead.

10

confidentiality as to nontestamentary matters is discrimina-

tory.

Independent Counsel also says there is no discrimina-

tion against the dying because the client must testify truth-

fully and the attorney “simply” must disclose the same

information the client would have disclosed. We have

dealt with the essence of this wrong-headed argument

above, but here make an additional point. The dying

would often know that, as a practical matter, they never

will testify in a criminal proceeding because death will

overtake other events. The Court will recall that Mr.

Foster died only nine days after he spoke with Mr. Hamil-

ton. Under either the court of appeals’ or Independent

Counsel’s formulation, if the client near death declines to

speak with a lawyer, his or her secrets go to the grave;

but if the client does consult an attorney, whose advice

may be desperately needed, disclosure of those secrets is

a distinct possibility. To force this Hobson's choice on

dying clients discriminates against them.

E. Existing law overwhelmingly supports survival of

the privilege after death; the commentators are

split.

Independent Counsel argues that the “vast majority”

of state cases supports his position, as well as state statutes

and the “virtual consensus” of commentators. Br. 14, 16.

This claim is both wrong and misleading.

1. The “vast majority” of state cases Independent

Counsel refers to involve the “testamentary exception”

where the privilege is waived for the sole purpose of ob-

taining evidence as to the client’s testamentary intent. Br.

16. But these cases, and the state statutes that codify the

testamentary exception, recognize that it is just that—an

exception to the general rule that the privilege survives

death.'°

10 See Glover v. Patten, 165 U.S. 394, 408 (1897) (exception de-

scribed as a “waiver” of the general rule of confidentiality); Black-

burn v. Crawfords, 70 U.S. 175, 194 (1865) (same); Hitt v.

11

Independent Counsel argues that these cases represent

a policy determination that correctly disposing of an estate

trumps the interest in preserving the confidentiality of the

deceased’s conversation with counsel who drafted the will.

The issue of whether a crime was committed and by whom,

he then contends, is at least important as “who gets Black-

acre,” and the needs for such information “are surely suffi-

cient to trump the privilege after death.” Br. 17 (emphasis

in original).

But this analysis overlooks the basic notion that the “tes-

tamentary exception” is designed to implement the client’s

testamentary intent. This Court in Glover v. Patten, 165

U.S. 394, 408 (1897), recognized that this is so; numer-

ous other cases concur."

Attempting to find (or invent) similar intent in the

criminal investigation situation, Independent Counsel

makes an extraordinary statement. It is, he says “ ‘fair to

presume’ that the client would have wanted to provide

Stephens, 675 N.E.2d 275, 278 (Ill. Ct. App.), appeal denied, 679

N.E.2d 380 (Ill. 1997) (“[t]he only context in which a client’s death

might affect the viability of the privilege is a will contest’’) ; Doyle

v. Reeves, 152 A. 882, 883 (Conn. 1931) (will contest rule is a

“recognized exception”) ; Succession of Norton, 351 So. 2d 107, 112

(La. 1977) (“exception” to general rule that “the death of the

client does not terminate the privilege” ).

Rule 502 of the Uniform Rules of Evidence describes the will-

contest rule as an “Exception” to the “General Rule of Privilege,”

as do 18 of the statutes that adopt the Uniform Rules; Alabama,

Alaska, Arkansas, Delaware, Hawaii, Idaho, Kansas, Kentucky,

Louisiana, Maine, Nevada, New Hampshire, New Jersey, New

Mexico, North Dakota, South Dakota, Texas and Wisconsin (cited

in our principal Brief at 21-22 n.22). The California Evidence

Code, § 953, also labels the will-contest rule as an “Exception.”

11 The cases cited in n.10 supra all state or indicate that imple-

menting the client’s testamentary intent is the basis for the testa-

mentary exception. Examples of other cases relying on the client

intent rationale are: Clark v. Turner, 183 F.2d 141, 142 (D.C. Cir.

1950); Doherty v. O'Callaghan, 31 N.E. 648, 650 (Mass. 1892);

In re Cunnion’s Will, 94 N.E. 648, 650 (N.Y. 1911); Bergsvik v.

Bergsvik, 291 P.2d 724, 731 (Or. 1955); Hugo v. Clark, 99 S.E. 521

(Va. 1919); Holty v. Landauer, 52 N.W.2d 890, 892 (Wis. 1952).

12

relevant information to the grand jury.” Br. at 19. He

derives this supposed presumption from the citizen’s duty

to testify before the grand jury. But citizens also have a

duty to pay taxes, and the Court should not presume that

a client would want everything he says to his or her tax

attorney revealed to the IRS. Nor can a similar presump-

tion rationally be made in many grand jury situations

where the client’s own reputation may be at stake, as well

as the fate of family, friends and associates. To base nega-

tion of the privilege at death on such a doubtful presump-

tion would be to ignore reality. To apply the privilege

after death in criminal proceedings, but not in will con-

tests, will not create “an irrational asymmetry in the law”

because reason and experience tell us that different pre-

sumptions as to client intent should pertain, as amici at-

torney associations confirm.

2. Independent Counsel also claims support from state

statutes providing that the deceased client’s personal rep-

resentative may assert the privilege. He argues that crimi-

nal proceedings have no relevance to the administration

of estates, and thus these statutes impliedly limit the

posthumous privilege to civil proceedings.

None of these codes (including the Arkansas statute

governing Mr. Foster’s still-open estate) states that they

are limited only to civil matters. Indeed, some have been

applied in criminal cases to uphold the privilege."* More-

over, Independent Counsel is wrong to assert that criminal

proceedings have no relevance to estate administration,

because criminal proceedings may result, e.g., in forfei-

12 In People v. Pena, 198 Cal. Rptr. 819, 828 (Cal. Ct. App. 1984),

the court in a criminal trial relied on the California Code provision

authorizing the decedent’s personal representative to assert the

privilege to sustain exclusion of a communication between the

decedent and his attorney. See also Cooper v. Oklahoma, 661 P.2d

905, 907 (Okla. Crim. App. 1983) (citing similar provision of Okla-

homa Code to support exclusion of decedent's privileged communica-

tion in a criminal trial); Jn re John Doe Grand Jury Investigation,

562 N.E.2d 69 (Mass. 1990) (allowing administratrix of decedent's

estate to assert privilege in response to motion to compel attorney's

testimony before grand jury).

13

tures that could deplete an estate. He also disregards the

many state evidence codes (including Arkansas’) that

allow the deceased's attorney to claim the privilege—provi-

sions that cannot be read as limited to civil proceedings.

Indeed, one such statute has been applied in a criminal

case.’

3. Also relevant are the reason and experience reflected

in bar and state ethics opinions. The consistent position

is that the attorney’s obligation of confidentiality survives

death."

4. Independent Counsel’s assertion that he is supported

by a “virtual consensus” of “overwhelming scholarly author-

ity” (Br. 12-15) exaggerates. The commentators’ views

are canvassed in our opening brief (at 23-24). Suffice it

to say here that all commentators concede that the case

law supports posthumous application of the privilege; that

none supports the view that the posthumous privilege op-

erates differently in criminal and civil proceedings; * that

certain commentators supporting termination of the privi-

lege argue that people care little about what happens after

13 See our principal Brief at 23 n.25. Cooper v. Oklahoma, supra,

cited the Oklahoma statute allowing the attorney to claim the privi-

lege in sustaining exclusion from a criminal trial of a deceased

client’s statements.

14 See ABA Ethics Committee Informal Opinion 1293 (confidences

must be preserved following client’s death). State and local bar

opinions adopting the same rule are summarized in ABA/BNA,

Lawyers’ Manual on Professional Conduct, {{ 801:4361 (Maryland),

801:1710 (LA County), 801 :6609 (North Carolina), 901:1033 ( Ala-

bama), 901:2069 and 2070 (Connecticut), 90:5102 (Mississippi),

901 :6265 (Nassau County), 901:8606 (Vermont), 901:9110 (Wis-

consin), 1001 :6001 (New Mexico), 1001:7313 (Pennsylvania). This

Court has looked to bar pronouncements in determining reason and

experience. Upjohn, supra, 449 U.S. at 390-91.

15 We read Mueller and Kirkpatrick to contend that the privilege

should be overcome posthumously to avoid “extreme injustice” both

in civil and criminal cases. 2 Mueller & Kirkpatrick, Federal Evi-

dence, § 199 at 380 & n.11 (2d ed. 1994).

14

they die—a view Independent Counsel does not defend; ™

and that some commentators (Wigmore and Frankel)

agree that the case law represents sound policy, while

others (Hazard and Hodes, Weinstein, Epstein, Rice) do

not criticize the present rule. In addition, one commenta-

tor Independent Counsel cites is fundamentally antagonis-

tic to the privilege and this Court’s decisions applying it,

making reliance on his views dubious at best.!”

5. Independent Counsel contends that the cases offer

little reasoning to support survival of the privilege after

death. Br. 21. However, survival is so well-established

that extended discussion may have been deemed unneces-

sary. Moreover, the only nontestamentary case supporting

termination of the privilege at death is a civil case that—

if the position advocated by Independent Counsel or the

court of appeals is adopted—was wrongly decided. Cohen

v. Jenkintown Cab Company, 357 A.2d 689, 692-94 (Pa.

Super. Ct. 1976).

By contrast, a leading recent decision holding that the

privilege survives death in a criminal case contains an

extensive discussion supporting that conclusion. It ex-

plains that, in many instances, a contrary rule would “so

deter the client from ‘telling all’ as to seriously impair the

attorney's ability to function effectively,” a result “incon-

sistent wtih the traditional value our society has assigned,

in the interest of justice, to the right to counsel and to an

effective attorney-client relationship.” In re John Doe

16 See 24 Wright & Graham, Federal Practice and Procedure,

5498, at 484 (1986) (concern for posterity would be “Pharaoh-

like”); Wolfram, Modern Legal Ethics, § 6.3.4 at 256 (1986) (con-

cern over post-death disclosure would be “mythic’’).

17 Professor Fischel believes that in Upjohn “[t)he Court got it

exactly backwards.” Fischel, Lawyers and Confidentiality, 65 U.

Chi. L. Rev. 1, 29 (1998). He concludes that “the ethical duty of

confidentiality, the attorney-client privilege, and the work product

doctrine .. . are of dubious value to clients and society as a whole”

and “falbsent some more compelling justification for their exist-

ence than has been advanced to date, these doctrines should be

abolished.” Jd. at 33.

15

Grand Jury Investigation, 562 N.E.2d 69, 71 (Mass.

1990).

F. Independent Counsel cannot rely on possible de-

fendant rights to enhance his ability to obtain

evidence.

This case involves a prosecutor and grand jury’s attempt

to break the privilege and obtain evidence; it does not

concern the rights of criminal defendants. Independent

Counsel, however, asserts a principle of evidentiary neu-

trality, claiming that, if a defendant has a right to obtain

exculpatory information despite a privilege, a grand jury

has a similar right because it is empowered to command

information that will protect the innocent. Br. 24-27.

This effort to piggyback on possible defendant rights fails

for several reasons.

First, there is no principle equalizing the rights of grand

juries and defendants to obtain evidence. Defendants have

a due process right to obtain material exculpatory evidence

the government possesses. Brady v. Maryland, 373 U.S.

83 (1963). Prosecutors have no right to force inculpatory

testimony from defendants, and Fed. R. Crim. P.

16(b)(2) further limits their pre-trial discovery rights.

Defendants have a right to exclude evidence prosecutors

obtained illegally: prosecutors have no comparable right

to exclude defendants’ evidence. 1 McCormick on Evi-

dence (4th ed.), § 173 at 707-08; Weinstein’s Federal Evi-

dence (2d ed. 1997) § 512.05. Defendants have a special

Sixth Amendment right to confront and cross-examine.

Prosecutors, however, may obtain a court order immuniz-

ing a witness claiming the Fifth Amendment, an investiga-

tive technique defendants do not enjoy.

Moreover, criminal defendants have no general right to

override valid privileges. The state criminal cases actually

reaching the issue all have decided that the attorney-client

privilege prevails over a defendant's rights to obtain evi-

dence. More broadly, rules that “ ‘accommodate other

legitimate interests in the criminal trial process’” override

a defendant's right to present a defense unless those rules

16

are “ ‘arbitrary’ or ‘disproportionate to the purposes they

are designed to serve.” United States v. Scheffer, 118

S.Ct. 1261, 1264 (1998), quoting Rock v. Arkansas, 483

U.S. 44, 55 (1987).

It may be that, despite the transcendent interests the

attorney-client privilege serves, some rare circumstance will

arise where its application after the client’s death would

be unconstitutionally “arbitrary” or “disproportionate.”

Compare Davis v. Alaska, 415 U.S. 308 (1974). But the

Court need not and should not decide that issue here.

Here, Independent Counsel claims that the grand jury is

entitled to obtain privileged material whenever it is rele-

vant, without attempting to demonstrate that anyone would

be arbitrarily or disproportionately harmed by denying

disclosure. Br. 41 n.40."° Even under the most liberal

18 Upjohn, supra, 449 U.S. at 396; Jaffee v. Redmond, 508 U.S. 1,

18 (1996).

We note that courts often have found ways to do justice without

violating the attorney-client privilege. Various courts have refused,

on conflict-of-interest grounds, to allow a husband accused of mur-

dering his wife to assert her privilege to exclude evidence poten-

tially harmful to him. Arizona v. Gause, 489 P.2d 830 (Ariz. 1971),

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

301 P.2d 808 (Wyo. 1956) ; District Attorney v. Magraw, 628 N.E.2d

24 (Mass. 1994). In Magraw a probate court, at the district attor-

ney’s behest, removed the husband as executor and appointed an-

other, thereby negating his ability to assert the privilege. In

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

case for those asserting that maintaining the privilege after death

can produce untoward results, the Arizona Supreme Court reversed

the conviction on another ground. Then, on remand, the privilege

appropriately was waived. However, the attorney evidence even-

tually was deemed untrustworthy and not admitted. Arizona v.

Macumber, 582 P.2d 162 (Ariz. 1978). That result was not surpris-

ing; allegations that someone since dead admitted the crime—

“someone who will neither contest the allegations nor suffer punish-

ment as a result of them”—are “not uncommon” and “are to be

treated with a fair degree of skepticism.” Herrera v. Collins, 506

U.S. 390, 423 (1993) (O’Connor, J., concurring).

19 A prosecutor’s determination of relevance is virtually impossi-

ble to contest in the grand jury context. A person challenging a

17

interpretation of a defendant's constitutional rights, a de-

fendant would not be entitled to pretrial discovery of any

privileged material defense counsel might think relevant.”

IL WORK PRODUCT.

A. The client’s death does not terminate the work

product privilege, which also belongs to the attorney.

Independent Counsel argues that the work product doc-

trine exists only for the benefit of the client and therefore

must expire with the client’s death. Br. 46-47. This argu-

ment is flatly wrong and is contrary to the very case In-

dependent Counsel cites for it. Moody v. IRS, 654 F.2d

795, 800 (D.C. Cir. 1981)

Moody held that the work product privilege “creates a

legally protectable interest in non-disclosure in two parties:

lawyer and client,” and that the “lawyer has standing to

protect ‘confidentiality necessary to proper preparation of

a case .. .”; that is, that degree of privacy necessary to

function as an effective advocate.” Moody v. IRS, supra,

654 F.2d at 801 and n.22 (citation omitted). Even the

court of appeals in the immediate case recognized that the

work product privilege protects “‘a complex of individual

interests particular to attorneys that their clients may not

share.’ Pet. App. lla, quoting In re Sealed Case, 676

F.2d 793, 809 (D.C. Cir. 1982).

grand jury subpoena on relevance grounds must show “there is no

reasonable possibility that the category of materials the Govern-

ment seeks will produce information relevant to the general subject

of the grand jury’s investigation.” United States v. R. Enterprises,

Inc., 498 U.S. 292, 297 (1991).

20 The recent decisions limiting the attorney-client privilege for

governmental attorneys do not affect this case. Both make clear

that they do not apply to government employees seeking advice from

private attorneys. In re Grand Jury Proceedings, D.D.C. May 27,

1998 (Misc. Nos. 98-095, 98-096 & 98-097 (NHJ)), slip op. 22-27;

In re Grand Jury Subpoena, 112 F.3d 910, 921 (8th Cir.), cert.

denied, 117 8. Ct. 2482 (1997).

21 Other cases holding that the work product privilege belongs

to the lawyers involved include Jn re Special September 1978 Grand

18

Here the work product privilege belongs to two pert-

sons—Mr. Foster and Mr. Hamilton. Unfortunately, Mr.

Foster is not here personally to assert it, but Mr. Hamilton

is and does. Independent Counsel’s argument in this re-

gard, made but not adopted below, is untenable.

B. There is no basis for reversing the district court’s

finding that the notes reflect the attorney’s mental

impressions; the grand jury’s need does not out-

weigh the privilege.

Alternatively, Independent Counsel asks this Court to

determine that Mr. Foster’s death created a sufficient need

to overcome the work product privilege with respect to

factual portions of the notes. Br. 47-48. Independent

Counsel ignores the district court’s finding that “the need

of the grand jury does not outweigh the privileges as-

serted.” Pet. App. 52a. He does not attempt to defend

the court of appeals’ basis for reversing that finding—.e.,

the erroneous conclusive presumption that lawyers do not

exercise professional judgment in taking notes at initial

client interviews.

There is not, as Independent Counsel contends (Br.

47), a “settled rule” allowing disclosure in the circum-

stances at hand. Rather, under the district court’s finding

that the notes “reflect the mental impressions of the law-

yer” (Pet. App. 52a), the notes are entitled to “the super-

protective envelope reserved by Rule 26(b)(3) for

‘mental impressions’” (Pet. App. 13a-14a), and may not

be produced using the ordinary standard of need applied

by the court of appeals. The district court’s finding is

supported by the record and by common sense—an attor-

Jury, 640 F.2d 49, 63 (7th Cir. 1980) (lawyer may assert privilege

to protect opinion work product, even though client could not do so

because of participation in fraud) ; Jn re Sealed Case, 29 F.3d 715,

718 (D.C. Cir. 1994). See Larkin, Federal Testimonial Privileges,

§ 11.03 at 11-53 (1998) (“The principal possessor of the right to

invoke the benefits of the [work product] doctrine is the attorney or

agent who prepared the materials in anticipation of litigation or

for trial.”’).

9

ney simply cannot take three pages of notes during a two-

hour interview without exercising professional selectivity.

Redaction of the notes to eliminate explicit expressions of

opinion would not protect the lawyer’s exercise of his

professional judgment in selecting what information to

record.”*

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted,

JAMES HAMILTON *

ROBERT V. ZENER

SwWIDLerR & BERLIN, CHARTERED

3000 K Street, N.W., Suite 300

Washington, D.C. 20007

(202) 424-7500

Counsel for Petitioners

Swidler & Berlin and

James Hamilton

June 1, 1998 * Counsel of Record

22 Independent Counsel cites two decisions in which courts have

required production of attorney notes of witness interviews. Jn re

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

Investigation, 599 F.2d 1224 (3d Cir. 1979) (decided before

Upjohn). Both cases, however, recognized that attorney notes re-

flecting mental processes enjoy heightene protection and did not

allow disclosure of attorney thought processes. The descriptions

of the notes involved in those cases demonstrate that they did not

resemble the highly fragmented, selective notes Mr. Hamilton

took. See 675 F.2d at 487 (notes were “recitations of [ witness’)

statements”); 599 F.2d at 1231-32 (interview notes were embodied

in “memoranda” containing “factual recitation.” )

Independent Counsel also cites Epstein, The Attorney-Client

Privilege and the Work-Product Doctrine 354 (1997), for the

proposition that a witness’ death is usually sufficient to require

production of work product materials. That statement, however,

was directed at ordinary work product, not opinion work product

such as involved here.