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Swidler and Berlin v. U.S

Citation. Swidler & Berlin v. United States, 524 U.S. 399, 118 S. Ct. 2081, 141 L. Ed. 2d 379, 66 U.S.L.W. 4538, 98 Cal. Daily Op. Service 4932, 98 Daily Journal DAR 6932, 49 Fed. R. Evid. Serv. (Callaghan) 1, 40 Fed. R. Serv. 3d (Callaghan) 745, 159 A.L.R. Fed. 729, 1998 Colo. J. C.A.R. 3175, 11 Fla. L. Weekly Fed. S 687 (U.S. June 25, 1998)
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Brief Fact Summary.

Vincent W. Foster, Jr. (Foster) was a Deputy White House Counsel who, in 1993, met with an attorney, James Hamilton (Hamilton) of the law firm Swidler & Berlin (Petitioner) to seek legal advice concerning possible violations of law in connection with the firing of various White House employees in 1993; Hamilton took three pages of notes at the meeting, all handwritten. Foster then committed suicide and the government, through an Independent Counsel, issued a subpoena seeking the notes taken at the meeting. A U.S. District Court granted a motion to quash the subpoena, holding that the communications were protected by the attorney-client privilege, and a Court of Appeals reversed that decision; Petitioner sought a writ of certiorari, which was considered here.

Synopsis of Rule of Law.

When a client makes certain communications that are protected by the attorney-client privilege and then subsequent to making the statements dies, the privilege survives the death of the client and, except for in litigation between the declarant’s heirs, the communications are not admissible as evidence.


In 1993, various employees were dismissed from the White House Travel Office. Subsequently, the Office of the Independent Counsel began an investigation into whether certain persons made false statements and/or obstructed justice in the course of the firings.
Foster, then Deputy White House Counsel, met with Hamilton, an attorney at Petitioner law firm, to discuss the investigation; at the meeting, Hamilton took three pages of handwritten notes.
The government then, at the request of the Independent Counsel, issued subpoenas to Petitioners, seeking Hamilton’s handwritten notes. Petitioners, arguing that the notes were attorney work product and therefore privileged under the work product and attorney-client privileges, filed a motion to quash.
The District Court granted Petitioners’ motion to quash, but the Court of Appeals reversed that decision, holding that the work product privilege did not apply and that the attorney-client privilege should not necessarily apply after the death of the client.


Does the attorney-client privilege apply to the communications made by Foster to Hamilton, even though Foster was deceased at the time the subpoena was issued?


Yes; the attorney-client privilege survives the client’s death and applies to the communications at issue here, even though the information sought here was in connection with a criminal investigation.


Justices O’Connor (writing), Scalia, and Thomas dissented, arguing that the attorney-client privilege should not apply to all communications of a deceased client made in criminal proceedings. Rather, the dissent argued, “the common law authority for the proposition that the privilege remains absolute after the client’s death is not a monolithic body of precedent.” The dissent went on:
[T]here is some authority for the proposition that a deceased client’s communications may be revealed, even in circumstances outside of the testamentary context. California’s Evidence Code, for example, provides that the attorney-client privilege continues only until the deceased client’s estate is finally distributed, noting that “there is little reason to preserve secrecy at the expense of excluding relevant evidence after the estate is wound up and the representative is discharged.”
Finally, the dissent pointed out, “The American Law Institute . . . has recently recommended withholding the privilege when the communication ‘bears on a litigated issue of pivotal significance’ and has suggested that courts ‘balance the interest in confidentiality against any exceptional need for the communication.’” The dissent concluded, “[i]n my view, the cost of silence warrants a narrow exception to the rule that the attorney-client privilege survives the death of the client.”


The Court first acknowledged that, “[i]t has been generally, if not universally, accepted, for well over a century, that the attorney-client privilege survives the death of the client in a case such as this. The Court then addressed arguments “against the survival of the privilege,” stating that such arguments, “are based in large part on speculation.

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