Swidler v. United States
524 U.S. 399, S. Ct. 141, L. Ed. 2d 379 (1998)

• Swidler and Berlin was a law firm. They represented the Deputy White House Counsel, Vince Foster.
• As part of their representation, they took notes about their meetings with him.
• Foster was involved in a scandal at the White House and subsequently killed himself.
• The Independent Counsel investigating the scandal subpoenaed the meeting notes. Swidler refused on the basis that the notes were protected by attorney-client privilege.
• The Independent Counsel argued that since Foster was dead, there was no reason to maintain the by attorney-client privilege.
• The duty of confidentiality if covered in Rule 1.6.
• The Trial Court found that the notes were still covered by attorney-client privilege. The Independent Counsel appealed.
• The Appellate Court reversed. Swidler appealed.
• The Appellate Court found that the notes were not protected by either the by attorney-client privilege, or the work product privilege.
• The Appellate Court found that a balancing test should be used to create a posthumous exception for communications whose relative importance to particular criminal litigation is substantial.
• The US Supreme Court reversed and found that the notes were covered by the by attorney-client privilege.
• The US Supreme Court looked to the common law and found that almost all courts have extended attorney-client privilege beyond the death of the client.
• The general rule is that, "communications are privileged during the testator's lifetime and also after the testator's death unless sought to be disclosed in litigation between the testator's heirs."
• About half the States also allow the representative of the deceased to waive privilege.
• In a dissent, it was argued that there should be an exception for criminal cases. Basically, once a person is dead they cannot be arrested for a crime, so there is no risk of damage that could possibly come from releasing the information.
• As opposed to a civil case, where a person's assets could still be affected by litigation after death.
• A dead person's confession to their lawyer could be used by a live person wrongly accused of the crime. Therefore there is a prudent interest in having an exception to attorney-client privilege.
• "The paramount interest that our criminal justice system places on protecting an innocent defendant should outweigh a deceased client's interest in preserving confidences."