# Reply Brief — Swidler & Berlin v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0156%3A10

## Record

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

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0156%3A10. Public record. Not legal advice.