524 U.S. 399 (1998)
In July 1993 Vincent W. Foster, Jr., then Deputy White House Counsel, met with attorney James Hamilton of the firm Swidler & Berlin to seek legal representation concerning possible congressional or other investigations of the 1993 dismissal of employees from the White House Travel Office.1 During the two-hour meeting Hamilton took three pages of handwritten notes, one of the first entries of which was the word "Privileged." Nine days later Foster committed suicide.2
In December 1995 a federal grand jury at the request of the Office of the Independent Counsel issued subpoenas to Hamilton and Swidler & Berlin for Hamilton's handwritten notes of the meeting with Foster.3 Petitioners filed a motion to quash the subpoenas.4 After examining the notes in camera the District Court concluded they were protected by both the attorney-client privilege and the work-product privilege and denied enforcement.5
The Court of Appeals for the District of Columbia Circuit reversed.6 It recognized that most courts assume the privilege survives death but concluded that a balancing test should apply in the criminal context.7 The Court of Appeals also held that the notes were not protected by the work-product privilege.8 A dissenting judge would have affirmed the District Court's judgment protecting the notes under the attorney-client privilege.9
Petitioners sought review in the Supreme Court on both the attorney-client privilege and the work-product privilege.10 The Supreme Court granted certiorari in 1998.11
Whether the attorney-client privilege survives the death of the client?12
The attorney-client privilege is one of the oldest recognized privileges for confidential communications and is intended to encourage full and frank communication between attorneys and their clients.13 Interpreted in light of reason and experience under Fed. Rule Evid. 501, the common law establishes that the privilege survives the death of the client.14
Yes. Foster sought legal advice from Hamilton during a confidential two-hour meeting concerning potential investigations into the White House Travel Office firings, and Hamilton created three pages of notes during that consultation.15 The common-law rule that the privilege survives death applies directly because the weight of precedent, including cases presuming survival even in criminal matters and treating testamentary disclosure as a narrow exception, confirms continuation after death.16 The Court of Appeals' proposed balancing test for criminal cases is rejected because it would introduce unacceptable uncertainty into the privilege's application and lacks support in the common law or reason and experience under Rule 501.17
The attorney-client privilege survives the death of the client and protects the notes from disclosure to the Independent Counsel.18
Related opinions on this issue
Justice O'Connor dissented from the majority's conclusion that the attorney-client privilege inevitably precludes disclosure after death.19 She argued that a criminal defendant's right to exculpatory evidence or a compelling law enforcement need for information may override a deceased client's interest in confidentiality when the evidence is not available from other sources.20 After death the potential harm to the client's interests is greatly diminished while the urgency for discovery in criminal cases is heightened.21
She would permit courts to balance interests in fairness and accuracy against the justifications for the privilege rather than treating it as absolute.22
Whether the work-product privilege protects an attorney's notes of a meeting with a client after the client's death?23
The work-product privilege protects materials prepared by an attorney in anticipation of litigation, but a court need not reach the work-product claim when the attorney-client privilege independently shields the materials.24
No. The attorney-client privilege independently protects Hamilton's notes after Foster's death, so the Court does not reach or decide whether the work-product privilege would also apply to those notes.25 This conclusion follows directly from the determination that the common-law attorney-client privilege survives the client's death and shields the notes from the grand jury subpoenas issued at the request of the Independent Counsel.26
The Court did not decide the work-product privilege issue.27
Related opinions on this issue
Justice O'Connor stated that she disagreed with the Court of Appeals' notion that the context of an initial client interview affects the applicability of the work-product doctrine.28 She concluded that the work-product doctrine does not apply where the material concerns a client who is no longer a potential party to adversarial litigation.29 In reaching this view she noted that the District Court had examined the documents in camera yet had not balanced the competing considerations presented by the case.30
O'Connor emphasized that the work-product protection yields when the client is no longer a potential party to adversarial litigation.31 This distinguishes the posthumous context from ordinary anticipation-of-litigation scenarios and aligns her position with the broader need for truth-seeking in criminal matters.