## Facts

- Deputy White House Counsel Vincent W. Foster, Jr. met privately with attorney James Hamilton of Swidler & Berlin in July 1993 to seek legal advice about potential investigations concerning the White House Travel Office dismissals.
- During the approximately two-hour consultation, Hamilton made three pages of handwritten notes marked “Privileged.”
- Foster died nine days later.
- In December 1995, a federal grand jury investigating possible crimes related to earlier inquiries into the Travel Office matter subpoenaed Hamilton and the firm for, among other items, Hamilton’s notes of the Foster meeting.
- The law firm and Hamilton sought to quash the subpoena, asserting attorney–client privilege and work-product protection.

## Issues

1. Whether the attorney–client privilege protects confidential client communications after the client’s death in response to a grand jury subpoena in a criminal investigation.
2. Whether a court may order posthumous disclosure of attorney–client communications based on a case-specific balancing of confidentiality against evidentiary need in criminal proceedings.

## Decision

- The Supreme Court reversed the D.C. Circuit and reinstated the order quashing the subpoena.
- The Court held that the attorney–client privilege survives the client’s death and covered Hamilton’s notes of Foster’s confidential consultation.
- The Court rejected a posthumous, criminal-investigation exception based on balancing the privilege against the government’s need for evidence.

## Legal Principles

- Under Federal Rule of Evidence 501, federal common-law privileges are determined “in the light of reason and experience.”
- The attorney–client privilege generally survives the client’s death; post-death disclosure is not permitted merely because the evidence is sought in a criminal investigation.
- A case-by-case balancing test for posthumous disclosure is improper because it creates uncertainty and can deter clients from making full and frank disclosures while alive.
- The testamentary exception is a narrow carve-out for certain disputes among heirs and does not imply a broader rule permitting posthumous disclosure in other contexts.

## Conclusion

The Court held that confidential attorney–client communications remain privileged after the client’s death and may not be compelled in a criminal investigation through a posthumous balancing test, reaffirming a clear federal rule of survival with only narrow, established exceptions.


Swidler & Berlin v. United States, 524 U.S. 399 (1998)