In 1998, the Supreme Court held in Swidler & Berlin v. United States that the attorney-client privilege survives a client’s death in the context of a criminal investigation.1 The underlying dispute involved Independent Counsel Ken Starr’s grand jury investigation of the dismissal of seven White House Travel Office employees (“Travelgate”) and the subsequent suicide of Vincent Foster, the acting Deputy White House Counsel at the time of the firings. When the grand jury subpoenaed the notes from a meeting between the late Foster and his attorney, the attorney and his firm, Swidler & Berlin, asserted attorney-client privilege over the notes and refused to comply. Eventually granting certiorari, the Supreme Court found that the privilege indeed prevented the notes’ disclosurein other words, Foster’s attorney, like his client, was to take the exchange to his grave.2
Championing “full” and “frank” communication, the attorney-client privilege is so integral to the lawyer-client relationship that the clientevery client, even a client fading on his deathbedmay rest assured that his lawyer’s lips will be sealed forever. In Foster’s case, the privilege meant that his lawyer could not be compelled, even at a grand jury, to disclose notes from a meeting that took place just nine days before Foster’s death.
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