# Amicus Curiae Brief — Swidler & Berlin v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0156%3A13 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1998 - **Citation:** 524 U.S. 399 ## 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 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. 20 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 21 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’ ”). 22 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. 23 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- 25 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. 26 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. 27 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 28 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’ ”). 29 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0156%3A13. Public record. Not legal advice.