Death and the Lawyer

Does the lawyer-client privilege apply when the client is dead? Kenneth Starr wants three pages of notes taken by Vincent Foster’s lawyer. The Supreme Court heard arguments Monday. The New York Times and Washington Post both had good pieces on the arguments pro and con. But neither explained one thing: After centuries of Anglo-American jurisprudence, how is it possible that this is still an open question?

Explainer asked around, and it seems state courts have ruled. Only the federal courts have not weighed in. Starr’s investigation is a federal matter. It is not impossibly surprising that no federal court has heard such a case. After all, 1) someone must die; 2) the decedent must know something relevant to an ongoing federal case; and 3) the decedent must have revealed facts otherwise undiscoverable to his/her attorney.

There is general agreement among the state courts that the attorney-client privilege does extend past death. There is no actual statute anywhere to this effect. But there is a thin string of state court cases dating back to 1840, holding that, in criminal cases, the attorney’s privilege outlives the client. (Disputes over wills are treated differently–attorneys must testify about conversations with the decedent.) The most horrifying case: In 1976, an attorney whose deceased client had confessed, in private, to a double murder was prevented by an Arizona court from testifying for a man accused of the murder. This (innocent?) man is currently serving a life sentence. The most famous case (also horrifying): in 1990 a Bostonian named Charles Stuart almost certainly staged the brutal murder of his pregnant wife, blamed it on an anonymous black man, and then jumped off a bridge just before being unmasked as a murderer. Before jumping he is thought to have confessed to his attorney, whom prosecutors could not force to testify.

TV courts have spoken too, and wrongly (or perhaps presciently). An L.A. Law episode from 1991 features a TV prosecutor who argues that “the privilege dies with the client.” The TV judge and TV defense attorney do not blink at this misreading of the common law.

The arguments for death-proof attorney-client privilege are that 1) a person’s right to privacy extends into death, because reputation matters and 2) knowing that your lawyer can reveal your conversations even after you are dead undermines the basic purpose of the privilege, which is to encourage clients to talk frankly with their lawyers. The American Bar Association insists lawyers cannot adequately defend a client unwilling to tell the lawyer everything. (Lawyers are not consigned to silence about attorney-client communications, however, when a living client won’t pay his/her bill.)

The arguments against death-proof attorney-client privilege are that 1) it hampers prosecutions–if Vince Foster were alive we’d ask him, but he’s dead so we should ask his attorney–and 2) if it’s OK for lawyers to violate privacy during disputed wills, it should be OK during more important proceedings, such as criminal trials.

Explainer thanks Professor Akhil Reed Amar, Professor Kevin McMunigal, and Simon J. Frankel for their help.