Amicus Curiae Brief — Swidler & Berlin v. United States

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Text

No. 97-1194.

Inu the Supreme Court of ¥

OcTosBEr TERM, 1997

SwiDLerR & BERLIN, ET AL., PETITIONERS,

Vv.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR AMICI CURIAE NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE LAWYERS,

AMERICAN CORPORATE COUNSEL ASSOCIATION,

NATIONAL HOSPICE ORGANIZATION, TRIAL LAWYERS

FOR PUBLIC JUSTICE, AND AMERICAN PSYCHIATRIC

ASSOCIATION IN SUPPORT OF PETITIONERS

Of Counsel: Mark I. Levy

Lisa B. Kemler Counsel of Record

Counsel for National Association Timothy K. Armstrong

of Criminal Defense Lawyers _ Jamison B. Taylor

John F. Stanton

Steven Alan Bennett HOWREY & SIMON

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

Counsel Association Washington, D.C. 20004

(202) 783-0800

John D. Giglio

Counsel for National Hospice Counsel for Amici Curiae

Organization

[Additional counsel listed on inside front cover}

—

Of Counsel:

Arthur H. Bryant

Counsel for Trial Lawyers for

Public Justice

Richard G. Taranto

Counsel for American Psychiatric

Association

TABLE OF CONTENTS

INTEREST OF THE AMICI CURIAE ...............ccccccescseseseseeeses l

ET Ey GEITTET <expcrncinstsnmncprasiscntiapntsiperenicninientinani 3

I eeetereneitetiitrerineientnmncnatatsinniintintanimmienitpmnansinmeeiinend 4

I. THE ABSOLUTE ATTORNEY-CLIENT

PRIVILEGE SURVIVES THE DEATH OF THE

A. An Absolute Attorney-Client Privilege Serves To

Encourage Complete And Candid

Communications By Clients, And The Common

Law And Evidence Codes Recognize That The

Privilege Does Not Abate Upon The Death Of

DORR IIID, ccsccencsssccsnsessssessnnsnsessnanstasmnecnnanasnccsneenesnsesansaceesn 5

B. The Panel Erred In Holding That The Death Of

The Client Results In A Qualified Attorney-Client

Privilege In Criminal Cases. ...............cccssesecsesssessseeeeseees 10

1. The panel's reasoning is inconsistent with the

fundamental principles underlying the

attorney-client privilege. .............0....c.c.cscssssssecerereeeees 10

2. A qualified posthumous privilege in criminal

cases will deter full and candid

communications by clients. ..................cccccceeeeeeeeren 13

3. The absolute posthumous privilege is not

undermined by the corollary rule that the

privilege is inapplicable in cases involving

claims by the deceased client's heirs. ....................... 21

Il. THE STRINGENT PROTECTION FOR

MENTAL-IMPRESSION WORK PRODUCT

APPLIES TO THE LAWYER'S NOTES OF HIS

PRELIMINARY MEETING WITH THE CLIENT. .......... 24

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

Mental Impressions Is Essential To Our System

Of Justice And Applies To The Disciosure Of

Factual Information In An Attorney's Notes That

Would Reveal His Thoughts And Judgments.................. 25

B. Because The Attorney Exercises His Professional

Judgment In The Information He Elicits And

Records, A Lesser Work-Product Privilege Does

Not Apply To His Initial Meeting With A Client........... 28

CONCLUSION

PEE EEE EE EEE EEE EEE EEE EE EEE EEE EEE EEE ETT ee eee

TABLE OF AUTHORITIES

CASES

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

EEE ST TR a Oe 27

Almendarez-Torres v. United States, 118 S. Ct. 1219

RE Se VE eae ee a a ee 2

Amchem Products, Inc. v. Windsor, 117 S. Ct. 2231 (1997)........... 2

Anderson v. Searles, 107 A. 429 (NJ. V9V9) ooo cccccccccceeeceeeeeees 7

Anderson v. Thomas, 159 P.2d 142 (Utah 1945) 0000 7

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

ee &

Baldwin v. CIR, 125 F.2d 812 (9th Cir. 1942)... 6

Bass Public Ltd. Co. v. Promus Cos., Inc.,

SK se

Bassett v. Newton, 658 So. 2d 398 (Alla. 1995) 000000. 7

Bennis v. Michigan, 516 U.S. 442 (1996) 000.0.0.0.0.cccccccccceceseoeeee 14

Blackbum v. Crawfords, 70 U.S. (3 Wall.) 175 (1865)....... 6, 21, 23

Branzburg v. Hayes, 408 U.S. 665 (1972) ...0..0...cccccccccceceeeeeeeneen 10

Bristol-Myers Co. v. FTC, 598 F.2d 18 (D.C. Cir. 1978)............ 27

Bullivant v. Attorney-General for Victoria,

1901 App. Cas. 196 (appeal taken from O.B.) 000000000... 7

Carter v. West, 19 S.W. S92 (Ky. 1892) .0.0..........cccccccccceeececeeceseeeeees 7

CFTC v. Weintraub, 471 U.S. 343 (1985) 0000 .8

Chahoon v. Commonwealth, 62 Va. (21 Gratt.) 822 (1871).......... 7

Chirac v. Reinicker, 24 U.S. (11 Wheat.) 280 (1826) 00000000000... .6

Clark v. Second Judicial Dist. Court, 692 P.2d 512

EET RE Te ee oe 7

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

ee Cee 9,15

Cooper v. State, 661 P.2d 905 (Okla. Crim. App. 1983) .....00......... 7

Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990)... 20

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

(11th Cir. 1994), cert. denied, 513 U.S. 1110 (1995) 000000... 27

Cruzan v. Director, Missouri Dep't of Health,

EE ED ES ee ae 2

Curran v. Paskek, 886 P.2d 272 (Wyo. 1994) 0000 0...cccceccceeeeeeeee 15

Curtis’ Estate, In re, 394 P.2d 59 (Kan. 1964) .00......0..ccccccccccceeeeees 7

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

aff'd mem., 781 F.2d 534 (6th Cir. 1985), cert. denied,

A cieterteiiieiiasicheicetilihiiniillaanicedlitinisiesihinittisnlin radian 6

eS, es . 27

Fox v. Spears, 93 S.W. 560 (Ark. 1906) ..0.......cccccccccceseseersenneeeneneees 7

Frazier v. Heebe, 482 U.S. 641 (1987) ............ccccceeceececsessesceneeenennees 2

Georgia Int'l Life Ins. Ce. v. Boney, 228 S.E.2d 731

Cie. Rete. FICE cccccnsnnncssreseanescttneninntinannisinnimaimnmamniaint 15

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) ......cccccccccceeeee 15

Glover v. Patten, 165 U.S. 394 (1897) .........cccccccesee. . 6, 21, 22, 23

Graf's Estate, In re, 119 N.W.2d 478 (N.D. 1963) .0.00...000...0.:00000 7

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

(SS a ee ae ae ee 27

Grand Jury Proceedings, In re, 473 F.2d 840

8 a a ee ae eee 27

Hatton v. Robinson, 31 Mass. (14 Pick.) 416 (1834)...................... 6

Herrig v. Herrig, 648 P.2d 758 (Mont. 1982) ..........00cccseseceeeseeeees a

Hickman v. Taylor, 329 U.S. 495 (1947) ......cccccccccccseeeeeneeneees 25, 26

Hitt v. Stephens, 675 N.E.2d 275 (Ill. App. 1996), appeal

denied, 679 N.E.2d 380 (TN. 1997) ...........ccccccccceccceeesceeeenseeneees 7

Hudson v. United States, 118 S. Ct. 488 (1997) ..0000.....ccccccccseeees a

Hughes v. Boone, 9 S.E. 286 (N.C. 1889) ..0........cccccceseseseeesneneeees 7

Hunt v. Blackbur, 128 U.S. 464 (1888) ........0....0...cccc0000. salnaias )

Jaffee v. Redmond, 116 S. Ct. 1923 (1996) .0.......0...ccccccceeeeee .. passim

Jewell v. Holzer Hospital Foundation, 899 F.2d 1507

ot RES Ee ee oe ew a ee 15

John Doe Corp., In re, 675 F.2d 482 (2d Cir. 1982) ........0cccc00 27

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

0 RE naa ae ees 6,7, 9,12

Kalina v. Fletcher, 118 S. Ct. 502 (1997) .0.......ccccecccsesseeseeseeeeenee 26

Kent Corp. v. NLRB, 530 F.2d 612 (5th Cir.), cert.

ee Gr I vititsliniccletnettattilaeniiicsindeiteneniinaniiuines 27

Layman’s Will, In re, 42 N.W. 286 (Minn. 1889) ....................... Py

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

DO ee Ce ili itctnitiacinlinitietnntescinbininnitetinnen aa

Leritz v. Koehr, 844 S.W.2d 583 (Mo. App. 1993) ...........0.0ccc008 15

Lorimer v. Lorimer, 83 N.W. 609 (Mich. 1900) ...00.00.00..0....2000000. = ,

MacDonald v. Time, Inc., 554 F. Supp. 1053

a SIT cinch csinsihcibiidasinltaatdapiilaeeaeielitgrliaettdendadaseatibidusianamnanataiis 16

Marek, In re Estate of, 480 P.2d 609 (Idaho 1971) ..0000.0000000000000.... 7

Martin v. Shaen, 156 P.2d 681 (Wash. 1945) 00000 cee. 7

Mayberry v. State, 670 N.E.2d 1262 (Ind. 1996) .00.0.0.0000000ccccccccue. 7

McCaffrey v. Estate of Brennan, 533 S.W.2d 264

i Ieee eiieiachiniistietseaiesivestnannintneescactninintettbinesiibissadinaneaiiats 7

Medcom Holding Co. v. Baxter Travenol Laboratories,

689 F. Supp. 841 (N.D. TD. 1988) 0000... cecececeseeeneserseeeereeees 7)

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) ....0.0..cccccccccccccceseesees =

Mernill v. William E. Ward Ins., 622 N.E.2d 743

SER Te a 15

Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) 000000000000. 17

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

I 7

Morar v. Burbine, 475 U.S. 412 (1986) .2.........ccccccccccceseeeseseveseoees cm

Moms v. Executors of Cain, 1 So. 797 (La. 1887).........cccccccccceseeeee 7

Nadler v. Department of Justice, 955 F.2d 1479

RCN RES EC Se Ot an eT Oe Oe 27

New York Trust Co. v. Eisner, 256 U.S. 345 (1921) ......0ccccccce. . 22

Nixon v. United States, 978 F.2d 1269 (D.C. Cir. 1992)........... .19

NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975) .00000000... . 27

Oliver v. Cameron, 11 D.C. (MacArth. & M.) 237 (1880) ......00....7

People v. Knuckles, 650 N.E.2d 974 (I. 1995)... .cccccecccccecees 12

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

appeal denied, 616 N.Y.S.2d 22 (N.Y. 1994) .00..ccccccccccccceeeee iv

People v. Pena, 198 Cal. Rptr. 819 (Cal. App. 1984) ...0.0000000...... +

Petroleum Info. Corp. v. Department of Interior, 976 F.2d

RES EES EN ee 27

Peyton v. Werhane, 11 A.2d 800 (Conn. eiatecibisiditaaiintanchbntilaiia 7

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

A REO RAENE TS p S 15

Regina v. Derby Magistrates’ Court, {1996} b Aap. Cas.

487 (appeal from O.B. Div] CL) ................-cececeecescsesseessseeeseseres 8

Rich v. Fuller, 666 A.2d 71 (Me. 1995) .000000......ccccccceceecescseeeseseeneees 7

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

ee TI ceisdatastiitsenscethen inceghenishased Shcasiniesitinediaainssiiiaiedibel 15

Rosen v. NLRB, 735 F.2d 564 (D.C. Cir. 1984) 00000... 10

Ryan v. Ryan, 642 N.E.2d 1028 (Mass. 1994) ........ccccccseseseenees 1S

Scott v. Grinnell, 161 A.2d 179 (N.H. 1960) .00.....0.0.ccccccccceeeeeees 7

Sealed Case, In re, 121 F.3d 729 (D.C. Cir. 1997) o00.000000000.. oa

Sheppard v. Maxwell, 384 U.S. 333 (1966) .........0ccccccceeeneennees 19

Sims v. State, 311 S.E.2d 161 (Ga. 1984) ......0..ccccccccccceeseeeee 15

Smith v. Smith, 152 S.E.2d 560 (Ga. 1966) .............0ccccccccccceseeceees 7

Smith's Estate, In re, 57 N.W.2d 727 (Wise. 1953) ......00.ccccceeeee 7

Spencer v. Kemna, 118 S. Ct. 978 (1998)... cccccseeneneneneenennen 15

State ex rel. State Highway Department v. 62.96247 Acres

of I and, 193 A.2d 799 (Del. Super. Ct. 1963)........ccccceeeecens 7

State v. Doster, 284 S.E.2d 218 (S.C.), cert. denied,

EINES EAE 5S oe es Cae 7

State v. Macumber, 544 P.2d 1084 (Ariz. 1976)...........0....0000000. Thy

Subpoena No. 22, In re, Dkt. No. 20 Phil. 1997,

1998 Pa. Super. LEXIS 140 (Pa. Super. Ct.

PRE A ee SL ee ae TC 15

Swetland v. Miles, 130 N.E. 22 (Ohio 1920) 00.0..0...cccccecceeees me

Talley Industries, Inc. v. United States,

188 U.S.P.O. (BNA) 368 (Ct. Cl. 1975) occccccccenseeeeteennenees 9

Tillinghast v. Lamp, 176 A. 629 (Md. 1935) ........cccccceeseseeeeenenees 7

United States v. Calandra, 414 U.S. 338 (1974) .......cc00cccc000 . 10

United States v. Costen, 38 F. 24 (C.C.D. Colo. 1889) ................ 6

United States v. Nobles, 422 U.S. 225 (1975)......ccccccccccccceeeeeseeee 25

United States v. Osborn, 561 F.2d 1334 (9th Cir. 1977) ............... 6

United States v. Weber Aircraft Corp., 465 U.S. 792 (1984)........ 1]

United States v. Zolin, 491 U.S. 554 (1989) ......cccccccccecccceeeeeneees 6

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

Vacco v. Quill, 117 S. Ct. 2293 (1997) .0.......ccssssssesesssesssesseesenensees 2

Virginia Bankshares v. Sandberg, 501 U.S. 1083 (1991) «00.00.0000... 2

Walker v. City of Mesquite, 129 F.3d 831 (Sth Cir. 1997)........... 20

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

Williams v. Commonwealth, 829 S.W.2d 942

Cs, Ram BOD i seccccttcensictcenaricesercsesninsesensminincsenctainesionicenscsseesiin 15

Yosemite Inv., Inc. v. Floyd Bell, Inc., 943 F. Supp. 882

FE RE ae errr ren Se re a ee §

STATUTES

Freedom of Information Act, 5 U.S.C. § 552(b)(5) ......0....00.... . 27

ae Ee I ciserisstiskcsttintiinensepinicncncindligpeecstntcscdseiae’ 16

Sn ts I Se RI ccenccctccstcnnsocninoctaniatiuiecounantsiinsieianats . 16

Conn. Gen. Stat. § 42-1 160(d)(1) oo... cccccccccccccccccceeeseseeeseresneereen 16

ER, © By iesietcsvcccvsvedivdencaceclvctstinctntccsensiininisecetens 16

ON ER ES a ee ee ee mre 16

Mass. Gen. L. ch. 231 § 85S(g).........cccsscscssssssssssscorssseseseesesseessees 16

Sr IN I lec 16

eee Gy ED Oh IID cncresosccccnccsuisesicactedndaserbotontiabendians . 16

I a lil 16

Bi i ieasliaialanell 16

po EE Te eee ae 16

8 a ee . 16

Tex. Civ. Prac. & Rem. Code Ann. § 73.001 .......c0cccccccccccccceees 16

mr, i slhiceeenaiatincbaibar 16

Utah Code Ann. § 76-9-50] 0........ccccccccscccssccsesssesssessssseessessseseees . 16

Re, Se GD Ob Pe ccccccincocovscecieacensoternsocbdacncsessndeancesovehsns 16

RULES

EES A A eR OD SD 3, 4,9

Model Code of Evid. R. 209(c)(i) & emt. 6 (1942) .o.ccccccccccceeee §

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

NE iNET: SSIS SES ne ee 8, 22

Proposed Fed. R. Evid. 504(a), 56 F.R.D. 183 (1972) .00000000..... 15

Proposed Fed. R. Evid. 506(c), 56 F.R.D. 183 (1972).....0......... oa

IN a cesilinailinoonn 8

BOOKS AND TREATISES

John Bartlett, Fammiar Quotations (16th ed. 1992)........... 16, 17

Kenne Fant, ALFreD Noset (Ruuth transl. 1993) 0000000000000... 18

Nicholas Halasz, NOBEL (1959) .00.........ccccccccccccssescessesseereseseeeeseees 18

Hatssury'’s Laws OF ENGLAND (4th ed. 1975) .00000.00.cccccccccceees 8

Geoffrey C. Hazard, Jr. & W. William Hodes, Tue Law

OF LAWYVERING (Supp. 1998) ................ccccecsssssssesesssessessesssneeeees 23

J. Edwin Hendricks, CHaRLes THOMSON AND THE

MAKING oF A New Nation, 1729-1824 (1979)... 18

Robert E. Keeton, et al., Prosser & KEETON ON Torts

(Sth ed. 1984)........ RO CERT A ES 5 LEE Le Nae eae aPC 16

Fred Lane, LANE GOLDSTEIN TRIAL TECHNIQUE (3d ed.

Pe Ge, Bre Racists cctsnensctinteainsiiendahadiactniguhbenislinsinestin 28

Christopher B. Mueller & Laird C. Kirkpatrick, FEDERAL

I Be vias decectariteectentltenincativiniisiesiatite 14, 22, 23

Paul C. Nagel, THE ADAMS WOMEN (1987) ............ccccceccseseeeeneees 19

Roger K. Newman, HuGO BLACK (1994) .00..00.....cccccceceteeeeneeeeen 18

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

RE EE LE a ae ae 8

Section of Litigation, American Bar Ass'n, THE

ATTORNEY-CLIENT PRIVILEGE AND THE WorRK-

Propuct DocrrInE (3d ed. 1996) .........ccccccccecsecscesceseesscesceeeeees 8

WEINSTEIN’S FEDERAL EviDENCE (McLaughlin ed., 2d

RRR Boe. EA Dae COLDER ees Ree et 22

Alexandra K. Wigdor, THE PERSONAL Papers OF SUPREME

SI a i aii lala 18

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

NON eer a SE LE A Ra 8, 10, 15

ARTICLES

John Blades, Presumed Guilty: Sam Sheppard's Son

Struggles to Clear the Infamous — and Acquitted —

Doctor’s Name, Cut. Tris., Oct. 25, 1995 ooo. cccccceccceceeeeeees 19

Francis M. Dougherty, Annotation, Defamation Action as

Surviving Plaintiff's Death, Under Statute Not

Specifically Covering Action, 42 A.L.R.4th 272 (1985)............ 16

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

Death of the Client, 6 Gro. J. Lecat Ernics 45 (1992) ..... 8, 19

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

I ead 18

John E. McHale, Jr., Dr. Mudd Deserves to Have His

Name Cleared, Wasu. Times, Oct. 4, 1997 .000000..00cccccccccceees . 19

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

Hide a Scandal? Bum the Letters, N.Y. Times, Feb. 9,

REE PN BEN PAD a SIE A So lB AO EN BNL tr 19

OTHER AUTHORITIES

American Bar Ass’n, FoRMAL Op1nion 91 (Mar. 8, 1933) ............ 8

Vili

American Bar Ass’n, INFORMAL OPINION 1293 (June 17,

SS ee ae Oe eee MeN Sein Cee Re 8, 14

a a 16

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

RESINS ee are rt Aeon ce ote ene 17

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

COUNSEL: IN RE VINCENT W. FosTER, JR. (June 30,

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

Commencement Address at the Law School of the

University of Arkansas (May 8, 1993) .........cccscccsssssssessesssesvvee 21

Introduction and Provenance to Index to Harding Papers,

Library of Congress, Manuscript Division (n.d.)................... .19

I a 16

Leonidas of Tarentum, in THe GREEK ANTHOLOGY,

SR Se edicrebaniecectecenincitiecndicntinainssidsciatetriestinintniine 16

H. Longfellow, A PSALM OF LIFE (1839) ....0......ccccccesecseseseseeeeeeees 17

PROPOSED RESTATEMENT (THIRD) OF THE LAW

GOVERNING LawyERs (Proposed Final Draft No. 1,

RRS REE ae EN CE Es Ee 8

Pemmereeee Totem, RIES GI) ances ncecaccconenicceancvcscscconcteventancee mS

W. Shakespeare, Kinc RicHARD THE SECOND (1595)............... .17

W. Shakespeare, OTHELLO (1604-1605) .o.........cccccccceccseeeeeseneees . 17

Kenneth W. Starr, REPORT OF THE OFFICE OF

INDEPENDENT COUNSEL ON THE DEATH OF

Wile is IN CUPID eccttcdsectesecicsisecsotesecendececsveninecinn 21

i eee

In the Supreme Court of the United States

OcToBer TERM, 1997

No. 97-1192

SwIDLER & BERLIN, ET AL., PETITIONERS,

Vv.

UNrrEeD STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR AMICI CURIAE NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE LAWYERS,

AMERICAN CORPORATE COUNSEL ASSOCIATION,

NATIONAL HOSPICE ORGANIZATION, TRIAL LAWYERS

FOR PUBLIC JUSTICE, AND AMERICAN PSYCHIATRIC

ASSOCIATION IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICI CURIAE'

The National Association of Criminal Defense Lawyers is a

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

torneys and 28,000 affiliate members throughout the United

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

representation of defendants in criminal cases. The attorney-client

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

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

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

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

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

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

brief.

members and their clients. NACDL has appeared as amicus

curiae in several cases in this Court. See, e.g., Almendarez-Torres

v. United States, 118 S. Ct. 1219 (1998); Hudson v. United States,

118 S. Ct. 488 (1997); Moran v. Burbine, 475 U.S. 412 (1986).

The American Corporate Counsel Association is a non-profit

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

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

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

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

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

members and the clients they represent. ACCA has participated as

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

Virginia Bankshares v. Sandberg, 501 U.S. 1083 (1991); Frazier v.

Heebe, 482 U.S. 641 (1987).

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

benefit, charitable organization dedicated to meeting the unique

needs of terminally ill people and their families. Established in

1978, NHO represents approximately 2,400 hospice programs,

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

tions. In addition to the physical, spiritual, social, and emotional

care and support provided by hospices, people in the final stage of

life often need legal services, and the attorney-client issue in this

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

those they serve. NHO has previously appeared as amicus curiae

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

Washington v. Glucksberg, 117 S. Ct. 2258 (1997); Cruzan v. Di-

rector, Missouri Dep't of Health, 497 U.S. 261 (1990).

Trial Lawyers for Public Justice, P.C., is a national public-

interest law firm devoted to the improvement of our nation’s laws

and system of justice. Founded in 1982, TLPJ is now supported by

a nationwide network of more than 1,500 attorneys. TLP] believes

that the decision below threatens our justice system by undermin-

ing the attorney-client and work-product privileges. TLPJ has pre-

viously participated as amicus curiae in several cases before this

Court. See, e.g., Amchem Products, Inc. v. Windsor, 117 S. Ct.

2231 (1997); Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996).

—

The American Psychiatric Association has participated in

numerous cases in the Court, including Jaffee v. Redmond, 116 S.

Ct. 1923 (1996), which recognized the psychotherapist-patient

privilege. The privileged nature of patient communications is a

basic tenet of psychiatry. APA’s members, and their patients, have

a strong interest in ensuring that the Jaffee privilege not be weak-

ened by disclosures after a patient’s death, which would upset pa-

tients’ expectations and impair the important purposes served by

the privilege.

SUMMARY OF ARGUMENT

I. The court of appeals’ decision that the absolute attorney-

client privilege does not survive the death of the client is unprece-

dented and contrary to the settled understanding of the bench and

bar. Although the ruling below is framed as a purported exception

to the general rule, the panel’s reasoning in fact is flatly inconsis-

tent with the fundamental premises of the basic privilege itself.

Moreover, the majority grossly underestimated the chilling effect

of posthumous disclosure on clients’ willingness to communicate

fully and forthrightly with their lawyers. In the light of “reason and

experience” (Fed. R. Evid. 501), an absolute rather than qualified

posthumous privilege is necessary to serve the time-honored pur-

pose of the attorney-client privilege: to facilitate legal representa-

tion by encouraging complete candor and truthfulness on the part

of clients.

Il. Contrary to the court of appeals’ decision, the stringent

protection for a lawyer's mental-impression work product applies

to his notes of a preliminary meeting with a client. No less at an

initial meeting than at any other, what the lawyer elicits from the

client, as well as what he elects to record and the language he uses

to do so, all reflect the exercise of the lawyer’s professional judg-

ment and reveal his (or her) mental processes. Accordingly, the

court below erred in applying the lax work-product standard ap-

plicable to purely factual information, rather than the more strin-

gent standard for mental-impression work product, to allow the

disclosure of factual material in the lawyer’s notes that reveal his

thoughts and legal strategies. A contrary rule would discourage

counsel from taking notes and interfere with effective legal repre-

sentation.

ARGUMENT

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

of Judge Tatel, incorrectly decided two issues involving the attor-

ney-client and work-product privileges that are of surpassing im-

portance to our adversarial system of justice and to the legal pro-

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

unprecedented and conflict with an unbroken line of decisions of

this and other courts over many decades. Moreover, the issues pre-

sented are recurring ones for the legal system and arise routinely

in the practice of law. As Judge Tatel explained, the majority's

“two new holdings—one chilling client disclosure, the other chill-

ing lawyer note-taking — will damage the quality of legal represen-

tation without producing any corresponding benefits to the fact-

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

nial of rehearing in banc). Because the panel's rulings are funda-

mentally misconceived under “the principles of the common law

as * * * interpreted * * * in the light of reason and experience”

(Fed. R. Evid. 501), the decision below should be reversed.

I. THE ABSOLUTE ATTORNEY-CLIENT PRIVILEGE

SURVIVES THE DEATH OF THE CLIENT.

In this case, the Independent Counsel obtained grand-jury

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

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

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

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

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

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

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

death of the client qualifies what would otherwise be an absolute

privilege and that an ad hoc balancing test determines whether the

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

material in the criminal investigation.

The court of appeals’ decision cannot withstand analysis.

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

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

the reasons advanced by the majority remotely justifies a departure

from the established rule, endorsed by courts and legislatures

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

The court of appeals’ decision, if upheld by this Court, will

adversely affect the legal system on a regular and even daily basis.

Most directly, it will be felt, as here, when material or information

is sought to be compelled after the death of the client. By itself,

that is a significant and recurring consequence. But the decision

also will come to bear every time a lawyer counsels a client on the

privileged nature of their communications and a client must de-

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

candid disclosure to his lawyer of the most highly incriminating,

embarrassing, or otherwise sensitive facts the client possesses. As

Judge Tatel aptly observed in dissent (Pet. App. 20a-21a), the at-

torney no longer can provide assurance that proper attorney-client

communications (that is, not in furtherance of a crime or fraud)

will be absolutely privileged, but instead must give much more

complex and qualified advice that the privilege ultimately de-

pends upon a post-hoc and free-form balancing test that will turn

on circumstances that cannot then be foreseen. The result of the

court of appeals’ decision is to confront clients —who already are

facing some legal problem for which they are seeking professional

assistance —with uncertain and confusing advice about the privi-

lege that in the end can be little more than cold comfort. The rul-

ing thus has an immediate and direct effect on the everyday prac-

tice of law and the routine decisions that clients make, and it

unavoidably will deter candid client disclosures that, until now,

were encouraged by the absolute attorney-client privilege.

A. An Absolute Attorney-Client Privilege Serves To

Encourage Complete And Candid Communications By

Clients, And The Common Law And Evidence Codes

Recognize That The Privilege Does Not Abate Upon

The Death Of The Client.

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

the oldest of the privileges for confidential communications

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

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

“is to encourage full and frank communications between attorneys

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

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

representation if the professional mission 1s to be carried out’” and

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

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

the} public interests in the observance of law and administration

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

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

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

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

from the consequences or the apprehension of disclosure.’” Ibid.

See also Jaffee v. Redmond, 116 S. Ct. 1923, 1928 (1996) (the at-

torney-client privilege is “‘rooted in the imperative need for

confidence and trust,’” and “the mere possibility of disclosure

* * * \that} may cause embarrassment or disgrace * * * may im-

pede development of the confidential relationship”); United States

v. Zolin, 491 U.S. 554, 562 (1989).

With striking uniformity, the law long has recognized that the

absolute attorney-client privilege continues after the death of the

client. As Judge Tatel demonstrated in detail below, “[s}ince at

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

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

and courts and legislatures consistently have adhered to that prin-

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

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

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

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

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

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

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

Baldwin v. CIR, 125 F.2d 812, $14 (9th Cir. 1942), United States v. Costen, 38 F.

24, 24 (C.C.D. Colo. 1889) (attorney-client privilege provides “the absolute as-

surance that that lawyer's tongue is ted from ever disclosing (the client's com-

munication. |"); Dixson v. Quarles, 627 F. Supp. 50, 53 (E.D. Mich.), aff'd mem.,

781 F.2d 534 (6th Cir. 1985), cert. denied, 479 U.S. 935 (1986).

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

(Mass. 1990); Hatton v. Robinson, 31 Mass. (14 Pick.) 416, 422 (1834) (under the

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

have addressed the issue has provided that the absolute attorney-

attorney-client privilege, “the mouth of the attorney shall be for ever sealed”). In-

deed, courts in at least thirty-six states and the District of Columbia have recog-

mized that the privilege continues after the client's death. See Bassett v. Newton,

658 So. 2d 398, 401 (Ala. 1995) (privileged communications “permanently pro-

tected from disclosure”); State v. Macumber, 544 P.2d 1084, 1086 (Ariz. 1976)

(criminal case); Fox v. Spears, 93 S.W. 560, 562 (Ark. 1906); People v. Pena, 198

Cal. Rptr. 819, 828-829 (Cal. App. 1984) (criminal case); Peyton v. Werhane, ||

A.2d 800, 803 (Conn. 1940); State ex rel. State Highway Department v. 62.96247

Acres of Land, 193 A.2d 799, 814 (Del. Super. Ct. 1963) (citing Wigmore trea-

tise); Oliver v. Cameron, 11 D.C. (MacArth. & M.) 237, 239 (1880); Smith v.

Smith, 152 S.E.2d 560, 565 (Ga. 1966); In re Estate of Marek, 480 P.2d 609

(Idaho 1971); Hitt v. Stephens, 675 N.E.2d 275, 278 (Ill. App. 1996), appeal de-

nied, 679 N.E.2d 380 (Ill. 1997), Mayberry v. State, 670 N.E.2d 1262, 1266-

1267 (Ind. 1996) (criminal case); Bailey v. Chicago, Burlington & Quincy Rail-

road Co., 179 N.W.2d 560 (lowa 1970) (adopting Wigmore position); In re Cur-

tis’ Estate, 394 P.2d 59, 62 (Kan. 1964} Carter v. West, 19 S.W. 592, 593 (Ky.

1892); Morris v. Executors of Cain, | So. 797, 807-808 (La. 1887); Tillinghast v.

Lamp, 176 A. 629, 632 (Md. 1935); Rich v. Fuller, 666 A.2d 71, 74-75 (Me.

1995); In re John Doe Grand Jury Investigation, 562 N.E.2d 69, 70-72 (Mass.

1990) (criminal case); Lorimer v. Lorimer, 83 N.W. 609, 611 (Mich. 1900); In re

Layman's Will, 42 N.W. 286, 287 (Minn. 1889) (communications repugnant to

“character or reputation” of decedent remain privileged); McCaffrey v. Estate of

Brennan, 533 S.W.2d 264, 266-267 (Mo. App. 1976); Herrig v. Herrig, 648 P.2d

758, 760, 762 (Mont. 1982); Lennox v. Anderson, | N.W.2d 912, 916 (Neb.),

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

Dist. Court, 692 P.2d 512, 514 (Nev. 1985); Scott v. Grinnell, 161 A.2d 179, 183

(N.H. 1960); Anderson v. Searles, 107 A. 429, 430 (NJ. 1919) (citing Wigmore);

People v. Modzelewski, 611 N.Y.S.2d 22, 23 (N.Y. App. Div.) (criminal case), ap-

peal denied, 616 N.Y.S.2d 22 (N.Y. 1994); Hughes v. Boone, 9 S.E. 286, 292

(N.C. 1889) (privilege is “perpetual”); In re Graf's Estate 119 N.W.2d 478, 481

(N.D. 1963); Swetland v. Miles, 130 N.E. 22, 23 (Ohio 1920); Cooper v. State,

661 P.2d 905, 907 (Okla. Crim. App. 1983) (criminal case); State v. Doster, 284

S.E.2d 218, 219 (S.C.) (criminal case), cert. denied, 454 U.S. 1030 (1981),

Miller v. Pierce, 361 S.W.2d 623, 625 (Tex. Civ. App.—Eastland 1962, no writ);

Anderson v. Thomas, 159 P.2d 142, 147 (Utah 1945); Chahoon v. Common-

wealth, 62 Va. (21 Gratt.) 822, 836 (1871) (criminal case) (“[wJith respect to

|privileged| communications, the mouth of the [attorney] is forever sealed”);

Martin v. Shaen, 156 P.2d 681, 684 (Wash. 1945); In re Smith's Estate, 57

N.W.2d 727 (Wise. 1953).

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

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

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

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

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

evidence codes.” The American Bar Association and a number of

commentators likewise have endorsed this common-law rule.”

And in the analogous situation involving the dissolution or bank-

ruptcy of a corporation, the corporation’s attorney-client privilege

is routinely recognized to continue.”

ed. 1975); see also Regina v. Derby Magistrates’ Court, 1996] | App. Cas. 487,

509 (appeal from Q.B. Div'l Ct.) (Lloyd, L.J., concurring) (“[i}f the client had to

be told that his communications were only confidential so long as he had ‘a rec-

ognisable interest’ in preserving the confidentiality, and that some court on some

future occasion might decide that he no longer had any such recognisable inter-

est, the basis of the confidence would be destroyed or at least undermined”).

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

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

183, 236, 240 (1972).

* See Unif. R. Evid. 502(c) (1986); Model Code of Evid. R. 20%c)(i) & emt.

6 (1942).

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

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

§ 2323 at 630-631 (McNaughton rev. ed. 1961); Simon J. Frankel, The Attomey-

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

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

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

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

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

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

Proposep ResTaTEMENT (THIRD) OF THE Law Governinc Lawyers § 127 &

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

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

client; although the commentary urges an exception, it acknowledges that “(t}he

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

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

ception urged in the Comment”).

” See CFTC v. Weintraub, 471 U.S. 343, 358 (1985); Yosemite Inv., Inc. v.

Floyd Bell, Inc., 943 F. Supp. 882, 883 (S.D. Ohio 1996) (“the right to assert the

attorney-c! ~nt privilege is an incident of control of the corporation and remains

with corporate management as the corporation undergoes mergers, takeovers,

name changes or even dissolutions”); Bass Public Ltd. Co. v. Promus Cos., Inc.,

868 F. Supp. 615, 619-620 (S.D.N.Y. 1994); Medcom Holding Co. v. Baxter

These consistent authorities convincingly establish that the at-

torney-client privilege continues after the client's death under “the

principles of the common law * * * interpreted in the light of rea-

son and experience.” Fed. R. Evid. 501; see also Jaffee, 116 S. Ct.

at 1928, 1930 (provision in Proposed Federal Rules of Evidence

lege as a matter of common law under Fed. R. Evid. 501); id. at

1929 & n.11, 1930 (uniform acceptance of psychotherapist privi-

lege by state courts and legislatures supported adoption of federal

common-law privilege under Rule 501; “the existence of a con-

sensus among the States indicates that ‘reason and experience’

support recognition of the privilege”).'' The lesson of history and

experience — grounded in human nature and common sense — has

been that abrogation of the absolute attorney-client privilege upon

the death of the client would discourage the full and forthright

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

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

subject to “the consequences or the apprehension of disclosure”

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

theory of the privilege recognizes—chills candid and complete

communication.

The subjective freedom of the client, which it is the

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

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

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

close the confidences * * *. It has therefore never

Travenol Laboratories, 689 F. Supp. 841, 842-843 (N.D. Ill. 1988); Talley Indus-

tries, Inc. v. United States, 188 U.S.P.O. (BNA) 368, 371-373 (Ct. Cl. 1975)

(dissolution of corporation; analogizing to authorities involving death of individ-

ual chent).

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

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

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

689 (Pa. Super. Ct. 1976); see also page 15 note 17, infra. This aberrational deci-

sion —which was not even a criminal case —does not support the panel's ruling

in this case and does not even begin to offset the overwhelming weight of con-

trary authority. See, e.g., In re John Doe Grand Jury Investigation, 562 N.E.2d at

71-72.

been questioned * * * that the privilege continues

* * * even after the death of th. client.

Wigmore § 2323 at 630-631.

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

Client Results In A Qualified Attorney-Client Privilege

In Criminal Cases.

The decision below rests on a number of conclusions that are

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

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

tion to the privilege upon the death of the client, the panel major-

ity’s reasoning is, in reality, at odds with the foundations of the

privilege itself.

a. To begin with, the majority asserted that “the privilege ob-

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

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

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

sound administration of justice and must be applied to accom-

plish its paramount purposes. See page 6, supra; Jaffee, 116 S. Ct.

at 1928. This principle is fully applicable to grand jury proceed-

ings. See United States v. Calandra, 414 U.S. 338, 346 (1974);

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

Moreover, contrary to the panel’s reasoning, this Court has

recognized that complete and candid disclosures are unlikely to

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

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

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

® Indeed, the D.C. Circuit itself has recognized the overarching public pur-

poses served by the privilege notwithstanding any incidental effect on fact-

finding. See Rosen v. NLRB, 735 F.2d 564, 572 (D.C. Cir. 1984) (per Starr, J.)

(“[t}he attorney-client privilege is but one of several privileges that prevent parties

themselves from adducing particular evidence, and thus create an obstacle to fact

finding due to the broad judgment that the value of introducing such evidence is

outweighed by the harm inflicted upon other policies and values”).

sary in no worse position than if the communications had never

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

at 1929 (“[T]he likely evidentiary benefit that would result from

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

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

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

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

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

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

b. In addition, the majority suggested that “[{i]n the sort of

high-adrenalin situation likely to provoke consultation with coun-

sel,” the client has adequate incentives to make full disclosure to

his lawyer even if the communication is not covered by an abso-

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

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

ognized the value of the privilege in further facilitating communi-

cations” notwithstanding that “an individual trying to comply with

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

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

c. The majority also reasoned that the privilege should not

continue after the client's death because the client was no longer

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

But the possibility of obtaining the desired information from a

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

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

merous situations where attorney-client privilege would apply

even though information was not otherwise available).

Furthermore, the possibility of eliciting the information di-

rectly from the client during his lifetime is considerably more

theoretical than real. While it is conceivable that the client in a

criminal investigation would waive the attorney-client privilege

(which also could be done by the representative of the client after

the client’s death), or would relinquish his Fifth Amendment right

against self-incrimination through waiver or a grant of immunity

trom the prosecutor, such circumstances are rare and the prospect

of their occurrence remote.

In the end, the attorney-client privilege does not rest on the

improbable assumption that the evidence sought from the lawyer

will be available from the client. Rather, it embodies the twin

principles that such evidence is unlikely to come into existence at

all absent the privilege (see page 10, supra) and that any marginal

unavailability of evidence is a price worth paying for the overrid-

ing benefits of the privilege to the legal system (see page 6, supra).

d. Finally, the majority concluded that the post-death privi-

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

determine whether the “relative importance [of the communica-

tions sought] is substantial” because they “bear on a significant as-

pect of the crimes at issue, and an aspect as to which there is a

scarcity of reliable evidence.” Pet. App. 8a, 10a. Once again, this

Court has refused to adopt an ad hoc balancing test for the attor-

ney-client privilege, holding that such an amorphous standard is

antithetical to the certainty necessary for an effective privilege:

[I|f the purpose of the attorney-client privilege is to be

served, the attorney and client must be able to predict

with some degree of certainty whether particular dis-

cussions will be protected. An uncertain privilege, or

one which purports to be certain but results in widely

varying applications by the courts, is little better than

no privilege at all.

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

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

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

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

privacy and the evidentiary need for disclosure would eviscerate

the effectiveness of the privilege”).'’ Unavoidably, the outcome of

"Other courts too have rebuffed similar efforts to use a post-hoc balancing test

to carve out exceptions to the attorney-client privilege. See, e.g., In re John Doe

Grand Jury Investigation, 562 N.E.2d at 71 (holding that, in cases involving the

death of the client, courts do “not weigh competing interests,” and rejecting

prosecutor's argument that the “court engage in a * * * weighing and balancing

of interests”); People v. Knuckles, 650 N.E.2d 974, 981-982 (Ill. 1995) (rejecting

a “‘public interest’ exception to the attorney-client privilege,” and noting that the

justification for the privilege does not diminish with “the passage of time”).

a balancing test that turns on such factors as the relative impor-

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

the evidence from other sources cannot be predicted ex ante at the

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

inconsistent decisions by courts in similar circumstances. See Up-

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

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

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

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

it is clear that the decision below creates exactly such murkiness

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

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

munications.

2. A qualified posthumous privilege in criminal

cases will deter full and candid communications

by clients.

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

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

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

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

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

concerned about the harm to their reputations from the posthu-

mous revelation of incriminating or embarrassing information that

they would be discouraged from imparting such information to

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

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

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

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

human experience.

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

over the effects of the posthumous disclosure of incriminating or

embarrassing information about himself on his family, friends,

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

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

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

barrassing information about others, including his loved ones and

associates. The disclosure of such information to a prosecutor after

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

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

tions, such proceedings can have enormous financial implications

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

torneys’ fees (cf. Bennis v. Michigan, 516 U.S. 442 (1996)); al-

though the court below recognized a client’s legitimate and sub-

stantial concern to provide for his survivors’ economic well-being

and thus to protect them from civil suit resulting from disclosure

(Pet. App. 6a), it entirely ignored the same potentially ruinous ef-

fect of their criminal prosecution. Any of these consequences

could well discourage a client’s candid discussions with his lawyer

in the absence of an absolute posthumous privilege. See Pet. App.

24a (Tatel, J., dissenting); American Bar Ass’n, INFORMAL OPIN-

10N 1293 (June 17, 1974) (posthumous disclosure of confidential

information conveyed by the client “could lead to numerous sen-

ous problems involving the client’s representatives, surviving rela-

tives and business associates” and “would be in contravention of

the very purpose of the privilege”); 2 Christopher B. Mueller &

Laird C. Kirkpatrick, FEDERAL Evipence § 199 at 380 (2d ed.

1994) (“[c]learly a client is concerned not only about himself but

about his larger human situation that includes spouses, parents,

children, siblings, and extended family, friends, and business asso-

ciates”)."*

Beyond that, the panel plainly was mistaken in minimizing

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

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

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

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

continuing privilege is necessary to ensure candid communica-

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

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

* — Contrary to the Independent Counsel's assertion (IC Br. in Opp. 13-14), it

is irrelevant that such statements concerning others may not be protected by the

client's Fifth Amendment privilege against self-incrimination. The attorney-

client privilege is broader than the self-incrimination privilege, and the relevant

issue is whether the client's concerns about family and friends would affect his

voluntary communications with his attorney absen. a continuation of the abso-

lute privilege after his death.

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

gravest doubt on the decision below.

What is more, other absolute privileges follow exactly the

same rule that the privilege survives the death of the declarant

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

doctor-patient privilege,'* the psychotherapist-patient privilege,”

and the spousal privilege for confidential communications" all

continue unabated after the death of the speaker. This unanimity

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

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

death continuation of an absolute privilege in order to encourage

the inter vivos communication of highly sensitive information."

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

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

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

1990); Leritz v. Koehr, 844 S.W.2d 583, 584 (Mo. App. 1993); Rittenhouse v. Su-

perior Court, | Cal. Rptr. 2d 595, 597 (Cal. App. 1991} Prink v. Rockefeller Ctr.,

Inc., 398 N.E.2d 517, 520 (N.Y. 1979); Wigmore § 2387 at 853 (“The object of

the privilege is to secure subjectively the patient’s freedom from apprehension of

disclosure. It is therefore to be preserved even after the death of the patient”).

" See Proposed Fed. R. Evid. 504(a), 56 F.R.D. at 241; Williams v. Common-

wealth, 829 S.W.2d 942, 944 (Ky. App. 1992); Sims v. State, 311 S.E.2d 161,

165-166 (Ga. 1984). The broad potential of the decision below is demonstrated

by a recent lower-court opinion holding—in reliance on this case and Cohen v.

Jenkintown Cab (see page 9 note 11, supra)—that the Pennsylvania psychothera-

pist-client privilege was, in the circumstances there presented, no longer absolute

after the death of the client. In re Subpoena No. 22, Dkt. No. 20 Phil. 1997, 1998

Pa. Super. LEXIS 140 (Pa. Super. Ct. Mar. 2, 1998).

* See Curran v. Paskek, 886 P.2d 272, 276 (Wyo. 1994); Merrill v. William E.

Ward Ins., 622 N.E.2d 743, 753 (Ohio App. 1993); Prink, 398 N.E.2d at 520;

Georgia Int'l Life Ins. Co. v. Boney, 228 S.E.2d 731, 734 (Ga. App. 1976); Wig-

more § 234] at 673.

” — The law recognizes legally protectable interests in reputation in a number of

contexts, such as the law of defamation. See Gertz v. Robert Welch, Inc., 418 U.S.

323, 341 (1974); see also Spencer v. Kemna, 118 S. Ct. 978, 991 & nn.3-6 (1998)

(Stevens, J., dissenting). Importantly, many jurisdictions have expressly included

posthumous reputation among the areas of protected interests. The value of an ar-

tistic creation, for example, fluctuates widely depending on the reputation of its

creator, and a number of states allow the successors of artists to recover damages

if the artist’s work is damaged or altered in a way that harms the artist's reputa-

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

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

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

religion, and other disciplines have recognized this human char-

acteristic. For example, the Bible states:

All these were honored in their generations, and

were the glory of their times.

There be of them, that have left a name behind

them, that their praises might be reported.

And some there be, which have no memorial; who

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

become as though they had never been born; and

their children after them.”

tion. See, e.g., Cal. Civ. Code § 987(g)(1); Conn. Gen. Stat. § 42-116t(d)(1);

Mass. Gen. L. ch. 231 § 85S(g); 73 Pa. Stat. Ann. § 2107(1). Similarly, several

states have recognized the value of posthumous reputation by making it a mis-

demeanor to “blacken the memory of the dead.” Robert E. Keeton, et al.,

Prosser & KEETON ON Torts § 111 at 778-779 (Sth ed. 1984); see also, e.g.,

Colo. Rev. Stat. § 1813-105; Ga. Code Ann. § 16-11-40; Idaho Code § 18-4801;

Nev. Rev. Stat. § 200.510; N.D. Cent. Code § 12.1-15-01; 21 Okla. Stat. § 771;

Utah Code Ann. § 76-9-501; Wash. Rev. Code § 9.58.010. Some states likewise

have enacted statutes allowing new defamation actions to be brought, or pending

actions to survive, even after the death of the defamed individual. See, e.g., R.1.

Gen. Laws § 10-7.1-1; 12 Okla. Stat. § 1441; Tex. Civ. Prac. & Rem. Code Ann.

§ 73.001; Utah Code Ann. § 45-2-2. See generally Francis M. Dougherty, Anno-

tation, Defamation Action as Surviving Plaintiffs Death, Under Statute Not Spe-

cifically Covering Action, 42 A.L.R.4th 272 (1985) (collecting authorities). These

bodies of law directly undermine the facile assumption of the court below that

posthumous reputation is too slight an interest to merit judicial concer. See also

MacDonald v. Time, Inc., 554 F. Supp. 1053, 1054 (D.N.J. 1983) (“[t]o say that a

man’s defamed reputation dies with him is to ignore the realities of life and the

bleak legacy he leaves behind”).

» Tue Bisie: Apocrypha, at 44:7~9, quoted in John Bartlett, FamMiLiar Quo-

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

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

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

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

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

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

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

Writers such as Longfellow likewise have recognized the value

people place on their reputations after death:

Lives of great men all remind us

We can make our lives sublime.

And, departing, leave behind us

Footprints on the sands of time.”

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

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

This natural human concern manifests itself in numerous

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

thropy that indicate “that human beings care deeply about how

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

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

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

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

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

kill.’” This

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

became so obsessed with his posthumous reputation

that he rewrote his last will, bequeathing most of his

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

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

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

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

” _H. Longfellow, A PsaLm oF Lire st. 7, quoted in Bartlett at 440:17,

® _ W. Shakespeare, Kinc RicHarp THE SECOND, act I, sc. i., 1. 182, quoted in

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

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

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

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

mains is bestial”); id., Ill, iii, 155, quoted in Bartlett at 206:30, and in Milkovich

v. Lorain Journal Co., 497 U.S. 1, 12 (1990) (“Good name in man and woman,

dear my lord, [i]s the immediate jewel of their souls; Who steals my purse steals

trash; 'tis something, nothing; "Twas mine, ‘tis his, and has been slave to thou-

sands; But he that filches from me my good name [rjobs me of that which not

enriches him, {a]nd makes me poor indeed”); M. de Cervantes, Don Quixore

DE LA Mancua, pt. I, bk. IV, ch. 1, p. 226, quoted in Bartlett at 150:4 (“My honor

is dearer to me than my life”).

fortune to a cause upon which no future obituary

writer would be able to cast aspersions.

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

Nicholas Halasz, NoBEt 3-4 (1959).

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

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

historical materials. Readers of autobiographies and memoirs are

familiar with the common focus of authors on their enduring

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

cer” have led numerous public officials to destroy their paners in

antic «sion of their deaths.” For example, Justice Black, in what

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

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

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

presidents.” And many prominent private citizens as well have

® This has been true since the time of our nation’s founding. For example,

Charles Thomson, the Secretary to the Continental Congress throughout the

Revolutionary War, destroyed his papers during his last years:

Later during his retirement Thomson even destroyed most of his pa-

pers. He commented that he did so because, if the truth were known,

many careers would be tarnished and the leadership of the nation

would be weakened. Just what disgraceful deeds Thomson referred to

will never be known, since the records his papers contained are lost

forever.

J. Edwin Hendricks, CHARLES THOMSON AND THE MAKING OF A New Nation,

1729-1824, at 189 (1979).

* — See Roger K. Newman, Huco Biack 621-622 (1994), see also Alexandra K.

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

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

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

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

inaccurately reflect history’”); id. at 34.

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

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

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

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

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

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

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

done the same thing.” Although human motivations are complex

and sometimes difficult to ascertain, this experience is sufficient to

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

death disclosure of incriminating or embarrassing information

would have little or no effect in discouraging candid attorney-

client discussions.

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

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

that people in general would be deterred from candid attorney-

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

decision, the familiar privilege does not in fact protect against

highly sensitive post-death disclosures. This deterrent effect would

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

(D.C. Cir. 1992). See also Introduction and Provenance to Index to Harding Pa-

pers, Library of Congress, Manuscript Division, at 3 (n.d.) (shortly after President

Harding's death, his wife destroyed “any material which mieh te ¢ proven

harmful to the memory of her husband”); Paul C. Nage' se > 2 Women

228 (1987) (President John Adams’ granddaughter, whe “«. ~«.d much of her

life * * * to preserving letters and memorabilia of her famous grandparents and

other relatives{,} * * * carefully pruned the manuscripts * * * in the hope that by

burning letters she might brighten history's memory”).

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

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

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

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

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

Likewise, survivors often work to maintain or restore the reputation of their

decedents. For example, Dr. Sam Sheppard was acquitted on retrial of murder

charges after this Court reversed his initial conviction in a highly sensationalized

trial (see Sheppard v. Maxwell, 384 U.S. 333 (1966)), but the general public re-

mained convinced of his guilt. He died a broken man in 1970, and his son has

made extensive efforts to clear his father’s name. See John Blades, Presumed

Guilty: Sam Sheppard's Son Struggles to Clear the Infamous—and Acquitted—

Doctor's Name, Cui. Tris., Oct. 25, 1995, Tempo Section at |. Similarly, even

more than 100 years after his death, descendants are still seeking to establish the

innocence of Dr. Samuel Mudd. Dr. Mudd treated John Wilkes Booth the day

after President Lincoln was assassinated; he was convicted of complicity in the

assassination and sentenced to life imprisonment, but was pardoned by President

Andrew Johnson. See John E. McHale, Jr., Dr. Mudd Deserves to Have His

Name Cleared, Was. Times, Oct. 4, 1997, at B3.

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

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

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

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

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

membered by his family, friends, business associates, and

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

he would be unconcerned about his post-death reputation and

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

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

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

one expects but few anticipate in an immediate or definite

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

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

soning.”

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

particularly significant where the client’s professional life was

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

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

{was his] most important and valuable asset.” Walker v. City of

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

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

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

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

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

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

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

tations on the document is the word: ‘Privileged."” See also id. at 25a (Tatel, J.,

dissenting) (representation by counsel that “‘l am totally certain * * * [that i}f |

had not assured Mr. Foster that our conversation was a privileged conversation,

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

subject of the situation today””).

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

death, he observed the following:

The reputation you develop for intellectual and ethical integrity

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

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

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

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

cem of clients for their reputations after death.

3. The absolute posthumous privilege is not

undermined by the corollary rule that the

privilege is inapplicable in cases involving

claims by the deceased client’s heirs.

In support of a qualified posthumous privilege, both the panel

(Pet. App. 3a & n.1) and the Independent Counsel (IC Br. in

Opp. 8-9, 15) place great weight on the so-called “testamentary”

rule that the attorney-client privilege does not bar disclosure of the

deceased client’s confidential communications in cases involving

claims by the client's heirs. They reason that this “exception” to

argument ignores the longstanding recognition of both the abso-

lute privilege and the testamentary rule and misapprehends the ra-

tionale for the testamentary rule.

The law long has recognized both the absolute posthumous

privilege and the testamentary rule. This Court, in applying the

testamentary rule in certain situations (as discussed infra), ac-

cepted the continued existence of the absolute posthumous privi-

lege in all other circumstances. See Glover v. Patten, 165 U.S. at

406-407; Blackburn v. Crawfords, 70 U.S. (3 Wall.) at 193. By it-

self, this historical co-existence refutes the assertion that the tes-

tamentary rule negates the basic privilege. On this question, in

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

irreparable.

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

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

B. Fiske, Jr., Report of THE INDEPENDENT CouNseL: IN RE Vincent W. Fos-

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

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

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

Report concluded that “[h]}is professional reputation was of paramount impor-

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

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

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

tion was of utmost importance’ ”).

Justice Holmes’ apt phrase, “a page of history is worth a volume of

logic.” New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921).

Moreover, contrary to the assumption of the panel and the In-

dependent Counsel, the testamentary rule is not an exception to

or inconsistent with the absolute posthumous privilege. Rather,

once the theory of the testamentary rule is correctly understood, it

becomes clear that the rule is a corollary of and completely com-

patible with the absolute privilege.

As the panel noted (Pet. App. 3a n.1), the testamentary rule

“applies only when the parties are claiming ‘through the client,’

not when a party claims against the estate.” The rule rests on two

rationales.

The first rationale reflects the fact that the identity of the

holder of the privilege after the client’s death may not be known at

the time the privilege issue arises. This occurs, for example, in

cases in which competing claimants each contend that he is the

rightful heir of the deceased client. In that situation, it cannot be

determined, prior to the conclusion of the litigation, who is the

proper successor to the client and therefore who is the holder of

the privilege entitled to invoke or waive it. As explained in the Ad-

visory Committee Note to Proposed Federal Rule of Evidence

503:

Normally the privilege survives the death of the client

and may be asserted by his representative. * * *

When, however, the identity of the person who steps

into the client's shoes is in issue, as in a will contest,

the identity of the person entitled to claim the privi-

lege remains undetermined until the conclusion of

the litigation. The choice is thus between allowing

both sides or neither to assert the privilege, with

authority and reason favoring the latter view.

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

240. See also, e.g., 3 WeEINSTEIN’s FEDERAL EviDENCE § 503.32

(McLaughlin ed., 2d ed. 1997); 2 Mueller & Kirkpatrick § 197 at

377-378. That rationale was adopted by this Court more than a

century ago. Glover v. Patten, 165 U.S. at 406-407.

The second rationale is implied waiver where disclosure

would serve to effectuate the deceased client's testamentary intent.

In that situation, “if the decedent could be asked, he would want

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

erty according to his wishes.” Geoffrey C. Hazard, Jr. & W. Wil-

liam Hodes, THe Law or Lawyerinc § 1.6:101 at 131] n.5.7

(Supp. 1998). See also, e.g., 2 Mueller & Kirkpatrick § 197 at 377.

That rationale, too, has been endorsed by this Court. Blackbur v.

Crawfords, 70 U.S. (3 Wall.) at 193-194.

Both of these theories for the testamentary rule in the limited

circumstances in which it applies are entirely consistent with the

general recognition of an absolute posthumous privilege in all

other situations. As the panel acknowledged (Pet. App. 3a n.1), the

law distinguishes between claims under the deceased client, to

which the testamentary rule is applicable, and claims by third par-

ties against the interest of the deceased client, to which the abso-

lute privilege remains in full force. See Glover v. Patten, 165 U.S.

at 406-407; Blackburn v. Crawfords, 70 U.S. (3 Wall.) at 193. The

present case falls clearly within the latter category, and indeed

there is not even a contention that the testamentary rule is appli-

cable here (see Pet. App. 3a n.1). Accordingly, this case is con-

trolled by the absolute posthumous privilege, and the existence of

that privilege is not defeated by the testamentary rule.”

* — The majority below and the Independent Counsel also argue that most liti-

gated cases involve the testamentary rule rather than the basic privilege. Even if

true, that argument casts no doubt on the absolute privilege. First of all, given the

important financial interests at stake, it is hardly surprising that much of the liti-

gation that follows the death of clients would concer estate matters. Moreover,

very few prosecutors have ever sought posthumous disclosure of attorney-client

communications by arguing, contrary to settled understandings, that the well-

established absolute privilege is transformed into only a qualified privilege upon

the death of the client.

~ 24

ll. THE STRINGENT PROTECTION FOR MENTAL-

IMPRESSION WORK PRODUCT APPLIES TO THE

LAWYER’S NOTES OF HIS PRELIMINARY MEETING

WITH THE CLIENT.

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

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

product privilege. The panel reasoned that factual materials con-

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

pressions, thought processes, or strategies because “the interview

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

ha[d]} not sharply focused or weeded the materials.” Pet. App. 13a,

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

subpoenaed notes was governed by the relatively lax work-product

standard for purely factual materials—which “merely shifts the

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

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

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

the substantial equivalent of the information . . . from other

sources without “undue hardship”’” (id. at 1 la~12a)—rather than

by the stringent standard for mental-impression work product.

The majority's decision was patently erroneous and reflects a

wholly unrealistic view of the responsibility and functioning of the

legal profession. Moreover, it is rebutted by decisions of other

courts that have recognized that the disclosure of factual materials

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

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

meeting with a client that otherwise fall within the safeguards for

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

tion simply because the meeting was a preliminary one requested

by the client.

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

product question is not limited to situations in which the client

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

gation as well. Furthermore, preliminary client meetings occur

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

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

Unless reversed, the court of appeals’ decision will have an imme-

diate and detrimental effect on this day-to-day practice of law; just

as the panel’s attorney-client decision will deter clients from can-

did communications with their lawyers, so, too, its work-product

decision will deter lawyers from “taking notes at early, critical

meetings with clients,” which “[njot only will * * * damage the

ability of lawyers to represent their clients but in the end [will

mean that] there will be no notes [to discover}.” Pet. App. 31a

(Tatel, J., dissenting from denial of rehearing in banc).”"

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

Mental Impressions Is Essential To Our System Of

Justice And Applies To The Disclosure Of Factual

Information In An Attorney’s Notes That Would Reveal

His Thoughts And Judgments.

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

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

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

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

what he considers to be the relevant from the irrelevant facts, pre-

pare his legal theories and plan his strategy without undue and

needless interference.” Hickman v. Taylor, 329 U.S. 495, 510-511

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

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

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

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

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

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

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

U.S. 225, 238 (1975). The doctrine reflects “strong ‘public pol-

icy’” (id. at 236), and “its role in assuring the proper functioning

of the criminal justice system is * * * vital.” Id. at 238.

As this Court summarized in Upjohn, the work-product doc-

trine imposes a stringent standard of protection for the mental

* The panel's ruling also will breed a disruptive and wasteful generation of

work-product litigation as lawyers and courts struggle to determine what is meant

by such elastic and undefined terms as a “preliminary” meeting or a “focus|ing}

or weed|ing}” of the facts.

processes of attorneys. Some courts have adopted an absolute rule

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

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

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

and is discoverable “‘only in a rare situation.’” 449 U.S. at 401.”

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

subject to a less stringent balancing standard that takes account of

the need for the information and its availability from other

sources.

Notwithstanding this general division between mental impres-

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

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

the factual information that a lawyer elicits from the client as

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

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

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

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

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

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

ABA CobDE OF PROFESSIONAL RESPONSIBILITY). In addition, the

information the lawyer distills and chooses to memorialize from

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

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

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

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

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

professional judgment to separate the relevant and important from

the irrelevant and unimportant’”) (quoting ABA Cope oF Pro-

FESSIONAL RESPONSIBILITY); Hickman, 329 U.S. at 511 (attorney

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

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

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

to provide the evidentiary support for the finding of probable -

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

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

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

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

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

nesses’ oral statements is particularly disfavored because it tends to

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

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

ognized that the compelled disclosure of factual information in an

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

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

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

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

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

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

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

much less strict standard of need and alternative availability that

relates to purely factual materials, the court below erred.”

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

under Exemption 5 of the Freedom of Information Act, 5 U.S.C. § 552(b)(5),

courts have held that otherwise disclosable facts that reveal protected thought

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

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

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

Department of Interior, 976 F.2d 1429, 1434-1436 (D.C. Cir. 1992); Nadler v.

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

Co. v. FTC, 598 F.2d 18, 29-30 n.23 (D.C. Cir. 1978); Kent Corp. v. NLRB, 530

F.2d 612, 624 (Sth Cir.), cert. denied, 429 U.S. 920 (1976).

* The cases cited by the Independent Counsel (IC Br. in Opp. 18)—which

did not involve “preliminary” client interviews or asserted failures by counsel to

“focus| |” or “weed{ }” the facts—are not to the contrary. See In re Grand Jury In-

vestigation, 599 F.2d 1224, 1228, 1231-1232 (3d Cir. 1979) (a lawyer's interview

memoranda that “indirectly reveal the attorney’s mental processes, his opinion

work product” is “discoverable only in a ‘rare situation’”; disclosure of memoran-

dum of interview with deceased witness was ordered where “opinion work prod-

uct * * * [would be] delete[d] * * * from the factual recitation” so that the law-

yer’s “‘mental impressions, conclusions, opinions, or legal theories’ (would be

redacted]”); In re John Doe Corp., 675 F.2d 482, 492-493 (2d Cir. 1982) (“the

mental processes and legal theories of the interviewing attorney * * * are entitled

to the greatest possible protection under the work-product immunity”; lawyer's

notes of interview with still-living witness ordered disclosed where “the work-

product itself * * * [was] part of a criminal scheme,” and where disclosure “will

B. Because The Attorney Exercises His Professional

Judgment In The Information He Elicits And Records,

A Lesser Work-Product Privilege Does Not Apply To

His Initial Meeting With A Client.

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

does not apply here simply because this was a “preliminary

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

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

notes “ ‘reflect the mental impressions’” of the attorney. Id. at 12a.

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

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

and experience in representing his client in anticipation of litiga-

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

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

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

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

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

siders significant in formulating his strategy and planning future

steps. See | Fred Lane, Lane GoLDsTEIN TRIAL TECHNIQUE

§ 1.03 at 3 (3d ed. 1997) & 1 (Supp. 1997) (the “initial client in-

terview” is “[o]ne of the most important stages in legal representa-

tion” and “crucial to the preparation for trial”; “[t}he attorney's

theory of the case is often shaped by information gathered from

the client during the initial client interview”). Nor is the need for

a “wide-ranging” discussion inconsistent with the lawyer’s exercise

of professional judgment as reflected in his decisions to include

some but not other information in his notes, his choice of lan-

guage to record the information, and his interlineated or marginal

comments and questions that accompany the information. In this

case, for instance, the lawyer—a highly experienced attorney in

interview, thereby exercising considerable professional judgment

as to what to write down, and he underlined and placed check

marks and question marks by certain passages that he believed

important for any number of possible reasons or future uses. See

not trench upon any substantial interest protected by the work-product immu-

nity” or “reveal anything worthy of the description ‘legal theory’ ”).

id. at 31a (Tatel, J., dissenting from denial of rehearing in banc).

Moreover, the record establishes (id. at 40a), as would be ex-

pected, that the attorney in fact prepared for the initial meeting

with the client by reviewing materials and making notes, and thus

he brought not only his experience but also his own information,

questions, and legal opinions—however tentative or fragmen-

tary —to the meeting.

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

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

order to facilitate a “wide-ranging” discussion (Pet. App. I4a, 13a)

is simply out of touch with the experience of practicing members

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

his professional judgment in both the information he elicits and

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

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

and is entitled to the most stringent protections.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

Of Counsel: Mark I. Levy

Lisa B. Kemler Counsel of Record

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

108 North Alfred Street Jamison B. Taylor

Alexandria, VA 22320 John F. Stanton

Counsel for National HOWREY & SIMON

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

Defense Lawyers Washington, D.C. 20004

(202) 783-0800

Steven Alan Bennett

American Corporate Counsel for Amici Curiae

Counsel Association

1025 Connecticut Ave., N.W.

Washington, D.C. 20036

Counsel for American Corporate

Counsel Association

John D. Giglio

National Hospice Organization

1901 North Moore Street

Arlington, VA 22209

Counsel for National

Staniden Cineadinatl

Arthur H. Bryant

Trial Lawyers for Public Justice, P.C.

1717 Massachusetts Ave., N.W.,

Suite 800

Washington, D.C. 20036

Counsel for Trial Lawyers

for Public Justice

Richard G. Taranto

Farr & Taranto

1850 M Street, N.W., #1000

Washington, D.C. 20036

Counsel for American -

Penchigtnic Acsaciati

ApriL 1998

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.