High Court Upholds Attorney-Client Privilege After Death
Ken Starr "disappointed" he will not gain access to notes of Foster's attorney
WASHINGTON (AllPolitics, June 25) -- In a rare defeat for Independent Counsel Ken Starr, the Supreme Court justices ruled Thursday that the attorney-client privilege does extend beyond the grave.
The justices ruled 6-3 against Starr's request for access to notes taken by late White House deputy counsel Vince Foster's lawyer just days before Foster committed suicide.
The decision is a setback for Starr's investigation and could have a lasting impact on the legal profession and all Americans who seek legal advice.
Starr's office had argued that he should be allowed to subpoena the notes because there are exceptions to the lawyerly tenet that attorney-client privilege lasts even after death.
Writing the court's opinion, Chief Justice William Rehnquist upheld the sanctity of the attorney-client privilege though. "It 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," Rehnquist wrote.
"While the arguments against the survival of the privilege are by no means frivolous, they are based in large part on speculation," the chief justice continued.
Starr wanted notes that Foster's attorney, James Hamilton, took during a conversation with his client. Nine days before Foster's 1993 suicide, he spoke confidentially to Hamilton about the controversial White House travel office firings in which Foster, a former law partner of first lady Hillary Rodham Clinton, played a role.
Starr voiced disappointment Thursday at the Supreme Court decision. In a statement, Starr said: "We understand the respect and care and expedition with which the court resolved the case. The issue obviously proved
to be of considerable difficulty, as the divided opinions of the Supreme Court
and the Court of Appeals reveal."
"In all events, we continue to pursue our investigation as thoroughly and expeditiously as possible," Starr wrote.
Rehnquist was joined by Justices John Paul Stevens, Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer. Dissenters included Justices Sandra Day O'Connor, Antonin Scalia and Clarence Thomas.
Writing for the minority, O'Connor said that although the privilege "ordinarily will survive the death of the client," it does not always trump the need for information in a criminal case.
"A criminal defendant's right to exculpatory evidence or a compelling law enforcement need for information may, where the testimony is not available from other sources, override a client's posthumous interest in confidentiality," O'Connor said.
A federal appeals court had agreed, ruling that Hamilton's notes can be turned over to Starr if they "bear on a significant aspect of the crimes at issue" and other reliable evidence is scarce.
Starr said he needed Hamilton's notes for the criminal investigation of whether presidential aides covered up a role by Mrs. Clinton in the travel office purge. Had he lived, Foster "would have been a significant witness in the investigation," Starr said in a Supreme Court filing.
Hamilton said he is pleased because an opposite ruling would have "horrendous" implications on the legal profesion. "I think the court recognized the importance of client candor. Client's have to be able to come and speak with their lawyers knowing that those conversations are going to be confidential, even after they die. The court recognized the practicality of the situation," Hamilton told CNN
"This case transcended in importance the immediate situation. This was a very important decision for lawyers, clients and the administration of justice," Hamilton said.
While White House officials are not commenting on the decision on the record, privately they applauded the decision and reveled in a high profile defeat for Starr. One source told CNN, "This is an important validation of the attorney-client privilege that is currently an issue in dispute with this Independent Counsel."
The decision is of more significance for the first lady than the president, according to White House officials familiar with the case. The first lady has denied any direct role in the firings, but internal White House memos obtained by Starr and congressional investigators suggest she was involved.
Administration sources tell CNN there are several references to the first lady in Hamilton's notes.
Clinton's supporters are also trying to tie this decision to the pending appeal on government attorney-client privilege. Bruce Lindsey, deputy White House
counsel and a friend of the president, has invoked attorney-client privilege in refusing to answer questions in front of Starr's grand jury investigating the Monica Lewinsky matter.
Foster was told conversation would be confidential
Foster spoke with Hamilton for two hours on July 11, 1993, to discuss possible legal representation "in the midst of intense public controversy" about the travel office firings, Hamilton said.
Foster asked Hamilton if the conversation was privileged and was assured that it was.
Foster was found dead of a single gunshot wound to the head on July 20, 1993. Three investigations concluded Foster committed suicide and that he had been depressed.
CNN's John King, Eileen O'Connor and The Associated Press contributed to this report.
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