Swidler & Berlin v. United States

PETITIONER: Swidler & Berlin
RESPONDENT: United States
LOCATION: Location of the oil rig Oncale worked on

DOCKET NO.: 97-1192
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 524 US 399 (1998)
ARGUED: Jun 08, 1998
DECIDED: Jun 25, 1998

Brett M. Kavanaugh - Argued the cause for the respondents
James Hamilton - Argued the cause for the petitioners

Facts of the case

During the 1993 investigation of the White House Travel Office ("Travelgate"), Deputy White House Counsel Vincent W. Foster, Jr., met with an attorney from Swidler & Berlin's law firm named James Hamilton. Nine days later, Foster committed suicide. During a subsequent investigation into the legalities of Travelgate, Independent Counsel Kenneth Starr subpoenaed Hamilton's notes about his meeting with Foster. When Swidler & Berlin challenged Starr's subpoena as a violation of the attorney-client privilege, a district court agreed. On appeal from an appellate court reversal, the Supreme Court granted certiorari.


Are communications between a client and his or her lawyer protected under the attorney-client confidentiality doctrine, beyond the Fifth Amendment's protections against self-incrimination, even after the client's death?

Media for Swidler & Berlin v. United States

Audio Transcription for Oral Argument - June 08, 1998 in Swidler & Berlin v. United States

William H. Rehnquist:

We'll hear argument now in Number 97-1192, Swidler & Berlin and James Hamilton v. the United States.

Mr. Hamilton.

James Hamilton:

Mr. Chief Justice, and may it please the Court:

On Sunday, July 11, 1993, at 10:00 a.m. in the morning, Vince Foster came to my home to consult me as a lawyer in the Travel Office matter, which was then the matter of intense public controversy.

We spoke alone for 2 hours, during which time I took three pages of notes, which are the subject of this litigation here today.

Before we began, Mr. Foster asked me if the conversation was privileged and, without hesitation, I said that it was.

It is not disputed that my notes would be privileged had Mr. Foster not taken his own life 9 days later in Fort Marcy Park, Virginia.

Mr. Chief Justice, I wish to make five major points this morning which I would like to summarize briefly at the outset.

First, any balancing test or ruling that leaves the existence of the attorney-client privilege after death in doubt would have a significant chilling effect on client candor, particularly as to those who expect to die soon, because people do care about their reputations and the fate of family and friends after death.

Secondly, Independent Counsel's central contention that only the perjurer would be chilled if the privilege does not survive but not the truthful client, or the client intending to invoke his Fifth Amendment privilege, is contrary to reason and experience and is unsupported by any decision of this Court.

Third, the conclusion that the privilege should survive in civil cases but not in criminal cases is illogical and unworkable and is supported by no case, no statute, or no commentator.

Fourth, all the pertinent State statutes recognize and virtually all of the nontestator cases hold that the privilege survives death, and the testator cases generally recognize that they apply an exception to the general rule that is intended to effectuate the testator's intent.

Antonin Scalia:

It's an exception that pretty much swallows up the rule though, isn't it?

James Hamilton:


Antonin Scalia:

I mean, like 95 percent of the cases involve the exception to the rule.

James Hamilton:

--Justice Scalia, that is correct, but they apply to a very specific situation, when there is a will contest, where there is a question about the testator's intent.

Antonin Scalia:

It's very specific, but it also happens to be the situation that is most likely to arise with respect to privilege as to a decedent.

James Hamilton:

Justice Souter--

Antonin Scalia:

It's precisely the situation most likely to arise.

James Hamilton:

--Justice Scalia, it is certainly the situation that has arisen most in the past.

I would suggest, though, that if the court's opinion below is upheld, the situation will arise much more in the criminal context.

Antonin Scalia:

How many cases upholding the privilege uphold it, uphold it against either a demand by a prosecutor in the... in a criminal case, or a grand jury request?

James Hamilton:

There are only two cases that I know of.

One is the case here.

The other is the case in Massachusetts, the case... the case involved a John Doe, as it is styled.

Anthony M. Kennedy:

Counsel, I recognize that the time frame for your briefing was compressed, but I think there may be at least a misimpression left by your footnote 22 at page 21 and it bears, too, on Judge Tatel's discussion and it bears, too, on your opening remarks that the States say the privilege does not survive.

In California, at least, and that's one of the States you cite in the footnote, the privilege does expire when the estate's closed, and that's been so for 35 years, and I have not found anything in the literature indicating that in California this has caused, number 1, any lack... any diminishment in the number of lawyers, or in their effectiveness in representing their clients.

And so I think it's a very important distinction to say that the privilege can be exercised pending the administration of the estate, and then it closes, and if the other States, or some of them, are like California, that is, it seems to me, a very significant indication that experience has shown that this is not a problem.

James Hamilton:

Justice Kennedy, I believe that California is the only jurisdiction that has that specific reservation or provision--

Anthony M. Kennedy:

Have other States addressed the problem?