Supreme Court To Hear Posthumous Privilege Case
Statement of NACDL President Gerald B. Lefcourt
Washington, DC, March 30, 1998 -- The U.S. Supreme Court today granted certiorari in Swidler & Berlin v. United States, No. 97-1192. The National Association of Criminal Defense Lawyers filed an amicus curiae brief in the case in support of James Hamilton, of D.C. law firm Swidler & Berlin, who was White House counsel Vincent Foster's attorney before his death in 1993. After Mr. Foster's death, Mr. Hamilton's client file was subpoenaed by the Office of the Independent Counsel as part of the Whitewater investigation. A split decision by the federal Court of Appeals for the D.C. Circuit upheld the subpoena, saying that the attorney-client privilege does not necessarily survive the death of the client.
NACDL President Gerald B. Lefcourt issued the following statement explaining the importance of today's decision:
"Citizens have a right to expect that confidential communications with their lawyer will remain confidential, even after their death, which is why the National Association of Criminal Defense Lawyers was joined by the American Corporate Counsel Association and the National Hospice Association in supporting Swidler & Berlin's request that the Supreme Court review the case. The attorney-client privilege would be dangerously compromised if the decision below is allowed to stand. Many Americans, particularly the elderly and the terminally ill, would be reluctant to consult freely with their lawyer if they know that their confidences could be violated after they die. That would render the privilege a cruel farce."
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NACDL is the preeminent organization in the United States advancing the mission of the nation's criminal defense lawyers to ensure justice and due process for persons accused of crime or other misconduct. A professional bar association founded in 1958, NACDL's almost 10,000 direct members -- and 80 state and local affiliate organizations with another 28,000 members -- include private criminal defense lawyers, public defenders, active U.S. military defense counsel, law professors and judges committed to preserving fairness within America's criminal justice system.
National Association of Criminal Defense Lawyers (NACDL)