Justices Take Up Limits of Privilege

Nine days before Vince Foster committed suicide, he spoke in confidence with his attorney. Three pages of handwritten notes came out of that meeting - notes that Whitewater investigator Kenneth Starr subpoenaed two years ago. If Mr. Foster were still alive, the notes would be off-limits.

But do conversations and confidences remain private after someone has died? The question is a classic legal chestnut that yesterday was heard by the US Supreme Court - in an unusual special hearing taking place in the last month of the court's current term, a time when the justices are usually writing opinions.

In the overall Whitewater investigation, with its bad-novel twists and political intrigue, the Foster notes are a sideshow. Yet legally the issue of attorney-client privilege, and what can and can't be considered confidential, is significant - whether or not the issue happened to emerge from the White House.

The justices were sharply divided in their questioning yesterday. They focused on confidentiality in criminal vs. civil cases.

The weight of questions on the court fell along the left-right divide. Justices Antonio Scalia and Anthony Kennedy seemed skeptical of a blanket confidentiality for lawyers, while Justices John Paul Stevens and David Souter questioned whether it was wise to allow a grand jury or prosecutor to delve into personal business anytime they wanted to seek information.

"A lot of consultations take place when no one has committed a crime," Justice Stevens noted, adding ironically: "We often assume people are innocent until proven guilty. The literature seems to be unanimous on this."

Justice Kennedy pointed out that in California lawyers have turned over the privilege of confidentiality to estate trust administrators for 35 years with no perceivable loss of reputation or general inharmony. "I don't see this case as being anywhere near as sweeping and unprecedented as you say it is," Kennedy said to James Hamilton, who argued on his own behalf.

Mr. Hamilton opened his argument poignantly, pointing out that he visited Foster's home at 2 a.m. on July 11, 1993, and spoke with him for two hours. "The first question he asked was, 'Is this privileged?' " Hamilton said.

"I said it was."

Should the court rule in Starr's favor, the status of lawyer-client privilege after death could change broadly - with family members and business partners as well as criminal prosecutors able to ask for records and remembrances of the communications between a lawyer and the deceased. Many legal experts say this would have a chilling effect on relations between lawyer and client.

Most Americans assume that any number of confidences - ranging from doctor-patient, minister-flock, and husband-wife - are sacrosanct. This has been the traditional common-law rule since at least the 19th century. Lawyers, for example, can be disbarred for breaking the privilege.

Previous ruling

The old rules changed, however, last August. In a case brought by Starr, the US District Court of Appeals in a 2-to-1 ruling stated that Foster's papers should be turned over to the Whitewater team to aid the criminal investigation. The needs of the special investigator, combined with the inability of Foster to be harmed personally after his passing, constitute a "discrete realm" of law where the "privilege should not automatically apply," the court ruled.

The stated focus of Starr's interest in Foster's notes, which were scribbled by his lawyer, Mr. Hamilton, is to shed light on the so-called "Travelgate" episode - the controversial firing of seven White House Travel Office employees in 1993 by the incoming Clinton administration.

Lawyers revolt

The American Bar Association (ABA) and several other prominent legal groups oppose the federal ruling. The ABA points out that lawyers must ask clients for all their secrets in order to best defend them.

Lawyers can't then turn over that knowledge on a client posthumously, without first informing the client that their private talks remain private only as long as the client is breathing. Such a move, critics say, would result in clients being less forthcoming on sensitive matters like wealth and extramarital affairs that they may need to disclose to their lawyers, without damaging their reputations or the emotional well-being of survivors.

Many exceptions to the attorney-client privilege already exist. For example, if Foster were alive and happened to be prosecuted, his lawyer is obligated to come forward if Foster lies under oath. The privilege can also be waived if lawyers must divulge information to keep from being prosecuted themselves. Or, if a client happens to confess a murder before he or she died and someone else is on trial for the crime, the lawyer can come forward.

"A distinction can be made between relationships that are instrumental and relationships that are intrinsic," says Akhil Amar of Yale University. "Lawyers have instrumental relations with clients. They have a special obligation to the court. Doctors, patients, and spouses do not."