Each Thursday we present a significant excerpt, usually from a recently published book or journal article. In every case the proper permissions have been obtained. If you are a publisher who would like to participate in this feature, please let us know via the site’s contact form.
IS CONFIDENTIALITY REALLY FOREVER — EVEN IF THE CLIENT DIES OR CEASES TO EXIST?
Anne Klinefelter and Marc C. Laredo
Originally published at Litigation, Vol. 40, No. 3, pp. 47-51, Spring 2014
(SSRN Excerpt: pp. 1 – 4)
Many readers have heard of Lizzie Borden, tried and acquitted of the 1892 murder in Massachusetts of her father and stepmother. The case even inspired a rhyme:
Lizzie Borden took an axe
And gave her mother forty whacks.
When she saw what she had done
She gave her father forty-one.
What you may not know is that Lizzie Borden’s lead attorney’s law firm continues to this day to maintain her client files in a confidential manner. In contrast, the trove of notes kept by another attorney on the defense team were discovered by his grandson, who willed the client materials to the local Massachusetts historical society, making them generally accessible some 100 years after the murder trial.
Which is the right result? Does client confidentiality live forever? What if the client is an entity rather than an individual? Should public figures be treated differently from ordinary private citizens after death? Should there be some point in time–50 or 100 years–when the right to confidentiality expires? Who will enforce the privilege once all the participants are dead? These questions have important implications for attorneys, law firms, and corporate entities. But they are also questions of importance to librarians whose libraries might be given papers that were protected by the attorney-client privilege, represented work product, or were the subject of an attorney’s ethical obligation to protect the confidentiality of client matters.
The attorney-client privilege survives the death of the client, the U.S. Supreme Court held more than a decade ago in Swidler & Berlin v. United States, 524 U.S. 399 (1998). Swidler arose in the course of the early Whitewater inquiry involving then-President Bill Clinton’s firing of White House Travel Office employees. Vince Foster, the deputy White House counsel, had sought legal advice from James Hamilton, an attorney in private practice. Nine days after consulting with Hamilton, Foster committed suicide. The independent counsel investigating President Clinton caused a grand jury to issue a subpoena for Hamilton’s handwritten notes. The Court ruled that the attorney-client privilege survived Foster’s death; therefore, Hamilton’s notes did not have to be produced. The Court’s ruling was based on a review of the common law as interpreted by the courts in the light of reason and experience, as the Federal Rules of Evidence direct. The Court noted that nearly every state acknowledges the survival of the privilege after the death of the client, with exceptions generally limited to disclosures necessary to carry out the intent of the client regarding settlement of his or her estate. But Swidler did not address work-product protections or ethical obligations of confidentiality, and the decision left unanswered a series of questions, the following among them:
What if the client is, or was, a corporation? Should the Swidler decision guide a defunct corporate client’s privilege?
At some point in time, should the privilege expire? Should it matter if the case was newsworthy or that the client was a public figure?
Who may assert a deceased client’s privilege long after the estate is settled and after the attorney has died? What risks does a recipient or discoverer of a deceased client’s files take in making them public?
The general traditional common-law rule is that the attorney-client privilege is forever. The protection covers communications between a client and his or her attorney in connection with the provision of legal advice. As long as such communications were originally confidential, the client, and the attorney acting on behalf of the client, can object to any discovery of this information.
Even though the privilege frustrates some truth-seeking interests, the Supreme Court has held it immune, at least in the Swidler scenario, to post-death balancing tests. The most recognized purpose of the privilege is to encourage clients to confide all salient facts to their attorneys in order to permit attorneys to advise clients properly. The idea is that in the absence of such an unfettered exchange of information, justice would be frustrated. The Swidler Court reasoned that a post-death privilege was necessary to induce clients to communicate fully with their attorneys. “Clients may be concerned about reputation, civil liability, or possible harm to friends or family. Posthumous disclosure of such communications may be as feared as disclosure during the client’s lifetime.” Id. at 407.
A number of states have addressed the issue of the survival of the attorney-client privilege, either through legislation or court rulings. Some also have articulated an exception that can be invoked by the executor of an estate in order to gain clarification of the deceased client’s testamentary intentions. This exception is considered minimally discouraging to clients who seek confidentiality in their communications with attorneys because it is used only to clarify and further the interests of the client in settlement of the client’s estate. Courts have been reluctant to extend these executory powers when the motive is shown to be inconsistent with the client’s interests.
In Massachusetts, for example, the Supreme Judicial Court held in In the Matter of a John Doe Grand Jury Investigation, 408 Mass. 480 (1990), that the privilege survived the death of the client. That case involved an effort to obtain information from the attorney for a murder suspect who had committed suicide. A grand jury was investigating the highly publicized murder of Carol Stuart and Christopher Stuart, the wife and son of the suspect, Charles Stuart. (Charles Stuart originally had accused an African American man of being the murderer, a charge that created racial tensions in Boston.) Prior to committing suicide, Charles Stuart consulted with an attorney, and the Commonwealth sought to subpoena that attorney to testify before the grand jury. The court rejected this request and held that, because the administratrix of Charles Stuart’s estate (his mother) refused to waive the privilege, it survived his death. Four years later, in District Attorney for the Norfolk District v. Magraw, 417 Mass. 169 (1994), the court held that a Massachusetts probate court had the authority to remove a husband as the executor of his late wife’s estate because the husband was using that position against the interest of his wife to refuse to waive the attorney-client privilege for communications between his wife and her divorce lawyer in an apparent effort to thwart an investigation of the husband, who was suspected of murdering his wife.
In 2002, in North Carolina, the widow executrix and the attorney for Derril H. Willard disagreed about whether to waive Mr. Willard’s attorney-client privilege after Mr. Willard’s suicide. Mr. Willard had been the subject of an investigation into the murder of the husband of a woman alleged to have been having an affair with Mr. Willard. When Willard’s widow sought to reopen his estate in order to exercise her statutory authority to waive the privilege for estate settlement purposes, the North Carolina Supreme Court, in In re Miller, 357 N.C. 316 (2003), found that her true purpose was not to effectuate the goals of the estate but to uncover information relevant to the murder investigation. The court held that Ms. Willard had no statutory executor authority for such a waiver of privilege but suggested that her husband’s will might have given his executrix a broader power to waive his attorney-client privilege. If this type of testamentary direction for broad management of the deceased’s privilege were recognized for an executrix, presumably that power would nonetheless cease upon the closing of the estate.
Additional protection for confidential information can be found in the work-product doctrine and the ethical rules, although the purposes of these protections are distinct from the purposes of the privilege and therefore subject to different justifications for their duration.
Work Product and Ethics
In 1947, the Supreme Court recognized the work-product doctrine in Hickman v. Taylor, 329 U.S. 495 (1947), as a common-law principle that prevents the legal profession from “performing its functions either without wits or on wits borrowed from the adversary.” This form of confidentiality protects the attorney’s materials prepared in anticipation of litigation or trial. The purpose of the work-product doctrine overlaps with that of the privilege but also encourages efficient law practice so that lawyers can make notes and collect facts relevant to litigation strategies without fear that adversaries would “live by the wits of an adversary.” The work-product doctrine is both narrower than the attorney-client privilege, because it relates only to litigation preparation, and broader, because it covers the attorney’s work product and not just his or her communications with a client. Whether work product survives the death of the client was not answered by the Swidler Court because resolution of the post-death privilege question made that work-product analysis unnecessary. To the extent that an attorney’s notes reveal client communications, the Swidler approach might be applied in the work-product context. However, the question of the impact of the attorney’s death on work-product protection is unanswered by Swidler and largely unaddressed by state courts or by scholars. While some of the language of Hickman describes work product as a form of intellectual property right of the attorney, the limitation of its scope to the representation of a particular client in anticipation of litigation is much narrower than that applied to the attorney-client privilege. This focus could well support a finding that the settlement of the dispute, and, even more so, the death of the litigants, could extinguish the protection of the doctrine.
The Rules of Professional Conduct generally are interpreted as protecting posthumous client confidences and all material relating to the representation of a client. The American Bar Association’s Model Rule of Professional Conduct 1.6 and similar state bar rules prohibit attorneys from disclosing information relating to their representation of a client without the client’s consent. A number of state bar opinions indicate that the ethical obligation to client confidentiality survives the death of the client. The purposes of the ethical rules on confidentiality overlap with goals of the attorney-client privilege and of work-product protection but also are said to be broader, in that they support the reputation of the legal profession. To the extent that the ethical obligation is seen as creating a duty to a client, the analysis that the privilege survives the death of the client would also suggest that counsel’s ethical obligations support the same result.
Ethical obligations are one of the reasons that Lizzie Borden’s lead lawyer’s client files continue to be kept locked away and confidential by the law firm he established more than a century ago. When attorneys at the firm considered sharing the files in the early 1980s for use in a symposium on the Lizzie Borden trial, they received a private letter from the Massachusetts Board of Bar Overseers advising the firm that its ethical obligations included the duty to protect the confidentiality of the files and even general information about the type of materials within those files.
Corporations, like individuals, enjoy an attorney-client privilege. In Upjohn Co. v. United States, 449 U.S. 383 (1981), the Supreme Court recognized that the privilege applies to entities and that the client is the entity itself and not its constituents (directors, officers, and employees, among others). Therefore, communications between such individuals and counsel may be privileged, but the privilege, including the power to waive it, belongs to the entity alone.
The life span of a corporation may be much longer than that of an individual client, but when that “life” comes to an end, should the attorney-client privilege also end for the corporate client? The Supreme Court as held that former directors, officers, or employees are not permitted to assert the corporation’s privilege, even as to discussions made by those persons in conversations with an attorney giving legal advice to the corporation. Consequently, these individuals should already be on notice that they have no personal claims to the corporation’s privilege. However, courts have provided a range of conclusions in considering whether a dissolved corporation should retain the privilege. Some conclude that the privilege does not survive the death of a corporation, but others hew to the concept that the privilege should survive because the risk of chilling client-attorney communications and a resulting diminution in compliance with the law are the same for corporate and personal clients. Attorney Michael Riordan wrote in a law review article entitled “The Attorney-Client Privilege and the ‘Posthumous’ Corporation– Should the Privilege Apply?,” 34 Tex. Tech L. Rev. 237, 258 (2003), that in spite of the paucity of law on the topic, the best analysis is that privilege is “of a personal nature and will not apply to an artificial entity, such as the defunct corporation ….”
A full copy of this paper is available via SSRN.