In Re: Sealed Case

In re: SEALED CASE 97-3006, 97-3007.

Nos. Appeals, Court

United States of Columbia Circuit.

District 20, 1997.

Argued June 29, 1997. Aug.

Filed privilege

the if the clent were still alve. Counsel, however, Independent The argues that the cals for a qualification client’s death privilege. agree. of the We Counsel, Kavanaugh, Associate Brett M. provides privilege Rule 501 that “the of a DC, appel- Washington, argued the cause for governed by princi witness ... shall be the Starr, lant, Indepen- with whom Kenneth W. ples interpreted by of the law ... common as Counsel, DC, Washington, Kimberly dent light the courts ... of reason and Lerner, Craig Brown and S. Associ- Nelson 501; experience.” Fed.R.Evid. see also Jaf Counsel, DC, Washington, were on the ate Redmond, -, -, v. fee brief. (1996). 1923, 1927, ap- argued Hamilton the cause for James We take this to be a mandate to the federal Lipps, Andrew L. Mi- pellees, with whom approach privilege courts to matters the DC, Washington, Spafford, chael L. William way that common law courts have traditional Zener, Washing- Mertens and Robert V. J. ly observing precedent addressed issue — (cid:127) ton, DC, were on brief. trying, prece but at the time same where controlling, dents are in conflict or not to find TATEL, WALD, Before: WILLIAMS purposes answers that balance the best Judges. Circuit the relevant doctrines. Opinion the court filed Circuit for generally Courts have assumed that Judge WILLIAMS. privilege survives death. See Simon J. Frankel, Attorney-Client Privilege “The Af- Dissenting opinion Judge filed Circuit Client,” Legal ter the Death of the 6 Geo. J. TATEL. (1992) eases). Ethics Modern WILLIAMS, Judge: provide person- F. STEPHEN Circuit evidence codes often representative may al aof deceased client jury grand arises out of a inves- This case privilege. assert See Restatement tigation firing into the of White House travel (Third) Governing Lawyers § Law of the Independent employees. office The Office Note, Reporter’s (Proposed comment c Final grand jury subpoenas for Counsel obtained 1996) (“Restatement”). Draft, March of a conversation between a now-de- nulli- privilege has effect been tion of the Athough courts often cite as axiomatic the it would most of cases where fied in the class death, proposition privilege that the survives death.”). after And such often be asserted have, distinguished commentators with one actually apply give little revela- eases as do exception, generally supported some measure reasoning may have ex- tion of whatever post-death exception, of curtailment. The plained the outcome. Wigmore, proclaimed that there was “no lim- beyond might it of time which the disclosures Supreme Court’s decision Glover not to the of the client or be used detriment 411, 394, Patten, 17 41 165 L.Ed. Wigmore of his estate.” 8 on Evidence (1897), proposition the is cited for 760 Rev.1961). 2323, § (McNaughton at 630-31 See, e.g., Bald privilege survives death. the sharply But others have criticized his view. Revenue, Internal win v. Commissioner of emphatic The most statement is that of Cir.1942). (9th fact, 812, In 814 F.2d Graham, wrote, Wright & who “One would however, simply typical a case that Glover have to attribute a Pharaoh-like concern for principle privi of the general the asserts immortality suppose typical client death, inap but finds it lege’s survival after posterity may has much concern for how among persons “claiming plicable disputes A view his communications.” Charles 407, client.” 165 U.S. at under the Graham, Wright & Kenneth W. of the at Even the Court’s endorsement 416. 5498, § Practice and Procedure: Evidence at ordinary privilege’s survival circumstances 127, § see also Restatement com- tepid. It observed that “such was rather (“Permitting ment d such disclosure would privileged if of communications confiding in do little to inhibit clients from persons to claims fered third establish lawyers”)3; 1 McCormick on Evidence estate,” 416, against id. at S.Ct. at an (4th 94, ed.1992) § at (terminating Jackson, 387, quoted Russell v. 9 Hare privilege at death “could substan- (1851), Rep. Eng. which degree encouragement tial lessen free privilege not in all stated that “the does disclosure”); § Kirkpatrick Mueller & party,” with the death of the cases terminate (“Few clients are much concerned claiming belongs “parties under the happen with what sometime after the will claiming adversely against parties as everyone expects death that but antici- few Glover, Id., at quoted him.” sense”). pate in an immediate or definite Compare Cal. Evid.Code (1997) (“[T]here Presumably depending is little rea on comment their confidence secrecy expense judgments chilling at the in their preserve son to as to the residual clients, excluding pro- relevant evidence after the estate effect on commentators have up representative posed range a is wound and the dis of substitute rules. Some short, charged.”). by way there is little of have embraced Learned Hand’s view that the death, judicial holding privilege apply that affirms the survival of should not at all after see, framing e.g., ALI privilege Proceedings, quoted after and the in 24 485; posthumous privilege belonging Wright as & Graham at 1 McCor- ciaries, dissenting colleague evidently 2. Our reads the free from claims based on statements to representative counsel, provisions allowing personal vesting has run its course. does Such implying of the to claim the deceased remotely suggest anyone's concern over excep- survives death without responsibility. (other one). testamentary than the standard tion at But the is far from Dissent inference (Third) portions 3. Drafts of the Restatement personal rep- Vesting clear. Lawyers, including § Governing Law plainly resentative is consistent with its terminat- tentatively approved have been the American estate, ing up winding when its membership Law Institute’s Council and but protecting function of the decedent’s transmis- yet finally adopted. have not been property to intended benefi- sion of his or her actually limits on chill the while on Evidence mick communications, however, suggested gen- hoped-for ap- Law Institute has American test, proposing plication judicial proceedings renders less ac- eral curate. empowered to withhold the a tribunal be then deceased as to privilege of Wright supposition & Graham’s that favor- litigated on a that bears communication ing after survival death re- significance. The tribunal pivotal issue imputing quires a “Pharaoh-like concern” to confidentiality balance the interest could exaggeration. clients be a bit of an But any exceptional need for the com- against surely post-death it is true that the risk of The tribunal also could con- munication. typically revelation will trouble the client less limiting proof sealing the rec- sider pre-death than question revelation. The is to limit disclosure. ord less, likely how much and the answer seems § comment d.

Restatement side, depend to on the context. On one liability altogether. will have ceased justification The for the hand, liability, Civil on the other characteris- an privilege largely has been instrumental continues, tically impulses and the same that one, greatly facili resting on a belief that provide people drive for their families in perhaps provision is to—the essential tates — clearly preserve life create a motive to their “can be legal of advice. Such assistance repu- In estates thereafter.4 the middle are safely readily availed of free from and when tational To the extent that concerns. con- consequences apprehension or the of dis the reputation Blackburn, cern over arises from an interest Hunt v. closure.” person the sort of treatment will receive 125, 127, L.Ed. 488 In 9 S.Ct. ranging from mundane matters addition, spoken privacy con some have of others — such as extension of credit to more subtle cerns, Frankel, supra, nn.41- see at 53-54 & greeted such as how one will be at social ones commentators), but it seems fair to with death. But there are events —it ends say played have at best a second that these aspects reputation of after-death that will event, privilege ary any because the role. alive—the value to concern a while is, it we truth-finding process, obstructs surviving family being (say) of related to an said, narrowly construed. In re have be person, distinguished honorable and and the Jury Transp., Investigation Ocean Grand of reputation simpli- value of one’s (D.C.Cir.1979). 604 F.2d effect). (the pure Pharaoh In the sort eiter object, presumably, The is to maximize high-adrenalin likely to provoke of situation of the benefits of confidential communi- sum counsel, however, we doubt consultation with attorneys finding cations with and those very power- if residual interests will be these through judicial processes. our the truth ful; may against them the individual solely if the focus were on truth-seek- Even history’s as more even view claims truth altogether ing, dispensing privilege with the extent, then, any deserving. that To the presumably negative would have results. post-death privilege can be restriction privilege may in at Any qualifying rule litigation, confined to the realm of criminal (once adopted) it is cause least some cases expect chilling we should the restriction’s attor- some clients to confide less effect to fall somewhere between modest and neys; that stillborn can the communication nil. abrogation never be disclosed. And protecting communications af- clearly impair provision The costs would Obviously high. ter are the death legal Except services. to the extent death successors, organizational impulse apply corporation see would also to a involved, 5499; Kirkpat- § but the Wright with which a decedent has been & & Graham Mueller characteristically belong 200; would Trading there Commodity also Futures rick see Industries, See, e.g., corporation. Weintraub, 471 U.S. Diversified Comm’n Meredith, (8th Inc. v. 611 n. 5 (1985) (corporate bank- Cir.1977). regarding termination of Thus rules ruptcy waive trustee controls and therefore biological on the death of the privilege). largely irrelevant. a discussion Of For complication, recognize aas direct source of infor- that incremental the client removes indeed, any in an mation; availability been con- even now belief absolute attor- his has ney-client privilege illusory. Edna explanation why See S. as an ventionally invoked Epstein, Attorney-Client Privilege only slightly impairs access (1997) (“Many the Work-Product Doctrine 3 Bar Association’s Commit- truth. American lawyers communications that clients and mis- Improvement of the Law of Evi- tee on the takenly privileged believe are in fact are dence, Wigmore quoted not.”). First, even communications made fewer, questionable the more Thus the legal confidence in the search for advice are (e.g., remaining sources because of wit- they unprotected illegality if relate to future bias), greater rela- nesses’ interest or (the exception”). Wright “crime-fraud & has told his tive value of what deceased Graham 5501. The dissent contends unavailability lawyer. Although witness client can certain his communica- be whether justify qualification of the alone would not excep- tions will fall under the crime-fraud unavailability privilege, we think tion, slipperiness. but this underestimates death, coupled with the non-exis- through acknowledged We have that “there for criminal liabil- tence of client concern attorney’s rare cases ... in which the fraud- (use ity creates a discrete realm after ulent or criminal intent defeats a claim of proceedings in criminal after death of the innocent,” if even the client is In re client) where the should not auto- (D.C.Cir. Case, 46, 2 Sealed 107 F.3d 49 n. reject general matically apply. balanc- We (Law 1997), citing Impounded In re Case ing in test all but this narrow circumstance. Firm), (3d 1211, Cir.1989), 879 F.2d 1213-14 rejecting ambiguous In rather limita two applies exception which indeed privileges tions for so-called “control- —the exception face of client innocence. And the group” qualification fraud, applies only not to crimes and but to privilege, Upjohn v. United 449 Co. other intentional torts. See In re Sealed 383, 677, U.S. 101 Case, (D.C.Cir.1985) (ap- 399 (1981), “balancing” psycho test for the “crime, plies misconduct”); fraud or other therapist-patient privilege, v. Red Jaffee Gomez, Irving see also Trust 100 Co. - mond, -, 135 (S.D.N.Y.1983) (communica- F.R.D. (1996) L.Ed.2d 337 Court ob —the unprotected wrongful- tions where client who served, privilege, or “An uncertain one which ly deprived another of use of his bank funds purports widely to be certain but results in reasonably should that such have known con- courts, by varying applications is little any duct constituted “fraud or other inten- Upjohn, at all.” better than no tort”); Stratton, tional Diamond v. 95 F.R.D. 684; Jaffee, U.S. at (S.D.N.Y.1982)(no protection where at-, Accordingly, 116 S.Ct. at 1932. communication in furtherance of intentional the extent that the commentators be distress). infliction of emotional generalized urging read as some sort of bal exception ubiquitous There is also the for ancing posthumous limitation test for litigation persons claiming between under disagree. We thus embrace the although many contexts decedent — arguments exception only for such an within (including imaginable most conversations litigation. the discrete zone of firings) about the White House travel office case-by-case we believe that a balanc While improbability application of its would be realm, appropriate ing is within we see readily apparent at the outset of the client- exception (apart no basis for further lawyer Although excep- communication. this long-established exception course from justified reflecting tion is sometimes litigation among claiming those under intent, likely supra, decedent’s see note it decedent). idea; perfectly not does track that a dece- course, exception, Even such a discrete might provide illegiti- dent want to for an complicates lawyer what must tell an prefer mate child at the time much but same confidentiality relationship go anxious client about the of a Fur- undisclosed. ther, prospective assessing But in conversation. some states the does not estate, opportunities perceive unimpaired winding up of an Cal. survive unimpaired memory, normally there and in would others Evid.Code 127, Reporter’s so, little basis for intrusion on the intended see Restatement do c; Note, Wright & Graham confidentiality. This limit release to comment should apply Finally, even courts at 485.5 where not is the risk of chill- contexts of a dece to bar statements ing slight keeping the communi- ing effect but trial have acknowl a criminal quite costly. dent from cations secret would be Cf. (D.C.Cir. cases Case, some edged that a defendant re Sealed F.3d 1997) to offer state right (need have a constitutional likely “it shown where him. Doe Grand that exonerate John ments important subpoenaed materials contain at 71-72 Jury Investigation, 562 N.E.2d evidence, equiva- ... evidence and this except where man (privilege survives death evidence, practically lent is not available considerations); constitutional source”). dated from another Doster, 647, 284 S.E.2d 276 S.C. State v. Review the district court (1981) (court of com upholds exclusion may play application camera a role this munications, saying that the defendant was proponent exception. Where the has offered his right to establish defense denied supporting good facts faith reasonable be privi merely “the license to fish into but may qualify the materials for the lief communications”). Compare Davis v. leged (a exception plainly met here standard Alaska, 308, 319, 94 S.Ct. 415 U.S. Counsel), Independent the district court (1974) (state inter 39 L.Ed.2d in its sound discretion examine the should juvenile anonymity for offender cannot est in they in communications to see whether fact confrontation). right trump defendant’s Zolin, States v. do. See United exceptions within of these While some 570-72, 2619, 2629-31, 105 L.Ed.2d control, all. that cannot be said of the client’s that the court To the extent lawyer his client that the Thus a who tells confidentiality, an interest in it can take finds absolutely and expected communications are steps to communications to limit access these oversimplifying a bit. privileged is forever analysis way in that is consonant with the a (Given likely impatience of the client with justifying privilege.6 relaxation of the See detail, legalistic the oversim- what seem Kirkpatrick § at 380-81. Mueller & plification may justifiable; we need uncertain- say.) Accordingly the incremental Privilege Work-Product exception hardly is ty by this introduced exception of an devastating. And admission work-product privilege created proceed- post-death use in criminal limited to Taylor, 67 S.Ct. by Hickman v. 329 U.S. murkiness that ings produces none of the (1947), may in some cases 91 L.Ed. 451 Jajfee Upjohn to persuaded the Court attorney- protect more material than the reject proposed limitations there. “protects privilege, because it both complex attorney-client relationship a proceed- in the realm of criminal Even particular attorneys interests grand jury proceedings), this individual ings (including may not share.” In re apply only communica- that their clients exception should (D.C.Cir. Case, 676 F.2d importance relative is substan- Sealed tions whose 1982). “opinions, Thus, judgments, the statements must bear on tial. issue, generally thought processes of counsel” are significant aspect of the crimes at seeking must protected, person them aspect is a scarci- and the and an as to which there extraordinary justification. Id. at 809- is an show ty of evidence. Where there reliable relevant, facts, nonprivileged howev- witnesses with 10. For of disinterested abundance parties disclosure as nothing tect innocent third from 5. The reveals of the status of the record case, Here, course, Indepen- estate in this and the Rule of Criminal decedent’s well. Federal 6(e)’s no based on its status. secrecy dent Counsel makes claim provision Procedure protection. jury proceedings gives additional confidentiality, considering In the interest pro- appropriate the court circumstances prod- er, product we said that the work being “[a]s embodied work presumption sought uct here is based on oral statements the standard merely shifts witnesses, stronger showing discovery, they are discover- a far so favor of seeking discovery required than the ‘substantial need’ and sat- able where 26(b)(3) hardship’ applicable of Rule “without undue standard the standard isfies Procedure, discovery protected work-product which re- docu- Rules of Civil tangible things.” other Sealed showing of “substantial need” and ments and quires a Case, equiv- at 273. And in Better inability to obtain the substantial 856 F.2d Gov- “the Bureau, McGraw, ... from other ernment Inc. v. alent of the information (4th Cir.1997), hardship.’” upheld Id. at 607-08 the court sources without ‘undue portion (identifying language as an as to the contested of an 809 n. 59 interview, “adequate attorney’s observing reasons” memo of an expression of Hickman’s formula).7 portions that those indicate the “tend[ed] lawyer’s] investigation, focus of [the court found that The district hence, opinions regarding her theories and work-product protected notes were litigation.” this also Cox v. Administra- they “reflect the privilege because mental (11th tor, Steel, F.3d attorney. Upjohn impressions” of the Co. Cir.1994). 101 S.Ct. All three the above cases involved inter- (1981), the Court observed part litigation-related views conducted as of a “[f]oreing an to disclose notes (Our Case, investigation. Sealed F.2d oral and memoranda of witnesses’ statements 268, in addition involves unrecorded recollec- particularly disfavored because tends to tions of interviews and was thus not within processes.” attorney’s mental Id. reveal 26(b)(3).) coverage Accordingly, of Rule at 687. But the Court did reasoned, as Allen facts elicited necessar- not decide whether factual elements embod ily lawyer. reflected a focus chosen ied in such notes should be accorded the preliminary Here the interview was one virtually protection privi absolute lawyer Although initiated the client. attorney’s lege gives impres mental surely potted palm, was no mere one would Indeed, sions. Id. at expect encourage fairly him to have tried reasoning presuppose seems to that such client, wide-ranging discourse from the so as divisible; analytically refraining in notes are that be sure nascent focus on the test, specific from formulation of a the Court lawyer’s part did not inhibit the client’s dis- question represented in said that the notes closures. protected by either communications the at (which torney-client privilege applicable, was Accordingly, general possibility unless the case) present in to the or mental purely contrast that factual material reflect the (either impressions protected by work-product privi attorney’s processes ques- mental in Paxson, Id.; lege. v. see also United States in tioning recording) enough to shroud (D.C.Cir.1988) (noting lawyers’ super-protective 861 F.2d all in spousal, priest-penitent, psy privilege for Like the privilege client is the oldest attorney- chotherapist-patient privileges, the known to the communications confidential “ imperative in beyond pro- privilege client ‘rooted Extending law. well common ” clients, and trust.’ v. tecting interests of need for confidence Jaffee -, -, Redmond, U.S. 116 S.Ct. “encourage[s] full and frank communication (1996) 1923, 1928, (quoting 337 attorneys their clients and 135 L.Ed.2d between 913). Trammel, 51, at 100 S.Ct. at promote[s] public interests 445 U.S. thereby broader Supreme recognized more than As the Court in the observance of law and administration of counsel “can century ago, the assistance justice.” Upjohn v. United 449 Co. 389, 677, 682, safely readily of when 383, only be availed 101 S.Ct. 66 L.Ed.2d U.S. (1981). apprehen or the Fully lawyers partici- consequences free from the 584 informed Blackburn, Hunt v. 128 legal system sion of pating in the as officers disclosure.” * published opinion, jury preserve secrecy have deleted from the been In order to portions proceedings, of this dissent selected

238 125, 127, 26(1)); 470, 464, 32 L.Ed. 488 Rule of Evidence 9 S.Ct. Model Code of 209(e)(i) (1942), frequently seek adopted by individuals Rule Because Evidence, concerning embarrassing, dis- legal Committee, counsel Advisory Court’s conduct, pos- “the mere or criminal graceful, 1 Michael H. see Graham, Handbook of communications sibility of disclosure” (discussing 521 Standard Evidence subjects may “impede develop- about such 503), twenty and codified at least state relationship,” Jaffee, ment of the confidential — Gregory Joseph see, e.g., P. legislatures, & 1928, at-, thereby 116 Stephen A. Salzburg, Evidence America: justice benefits to the eroding the substantial 24.2 The Federal Rules States legal system by well-informed coun- afforded (1992) codes); (citing 19 state Cal. Evid. represented Lawyers have clients sel. who (West 1995), 953 the common law Code key know the words to in sensitive matters exception” rule admits “no that outside the full disclosure: context, testamentary effectively represent you unless I I cannot privilege survives the client’s death. Re- everything. I will hold all our con- know Governing (Third) statement Law versations the strictest confidence. Lawyers (Proposed § 127 cmt. d Final Draft Now, story. please tell me the whole 1, 1996); No. see also id. additional authorities); century, the mid-nineteenth Since at least S. Epstein, Edna Attor- ney-Client Privilege protected attorney- the common law has and the Work-Prod- See, (3d (“The ed.1997) after a client’s death. 234 dura- uct Doctrine Executor, 88, e.g., Thompson’s v. 15 La. attaches, Hart persists tion of it once (1840) (upholding 93 after client’s lawyer unless the is released the client. death); 1 Treatise client, Upon the death of the Greenleaf, no release is on Simon (1850) (privilege 310 possible. Hence death seal should the law- the Law of Evidence client). death of Other than forever.”). affected yer’s lips testamentary disputes, for which there articulated, Although rarely the rationale independently exists a well-established and underlying the common law rule makes justified exception applicable to the case By preserving sense. after the Patten, us, see, e.g., before v. 165 U.S. Glover priva- law client’s ensures that the 394, 406-08, 411, 415-17, 41 17 S.Ct. L.Ed. cy afforded those who confide in counsel (1897), courts have 760 both state and federal extends to those who would otherwise take rule, consistently common followed the law grave. their secrets to the The common law litiga- whether the is claimed civil encourages rule thus legal individuals to seek tion, see, Osborn, e.g., States v. 561 advice, bringing the benefit of such consulta- (9th Cir.1977); Baldwin v. F.2d 1334 Com- themselves, legal system, tion to Revenue, Internal missioner of Fisher, society. (9th Cir.1942); Pena, People v. 151 Cal. (“As matter, practical if the client (1984); App.3d Cal.Rptr. damaging knows that information could more Lamb, Ill.App.3d Lamb v. 80 Ill.Dec. readily be obtained from the follow- (1984); Bailey v. N.E.2d ing disclosure than from himself in the ab- Co., Chicago, Burlington Quincy R.R. & disclosure, sence of the client would be reluc- (Iowa 1970), N.W.2d lawyer tant to confide in his and would be see, Macumber, proceedings, e.g., State fully legal difficult to obtain informed ad- Ariz. 544 P.2d John vice.”). Wigmore explains: As Jury Investigation, Doe Grand 562 N.E.2d client, subjective Modzelewski, The freedom of the which 72; People at v. 203 A.D.2d purpose 22, is the of the (N.Y.App.Div.1994); secure 611 N.Y.S.2d 23 ..., (Okla.Cr. State, could not be if attained the client Cooper v. 661 P.2d 907 that, Doster, understood when the relation App.1983); 284 ended State S.C. death, or even after the client’s the attor- S.E.2d see also 8 Wigmore, ney compelled § n.2 could be to disclose the 2323 & additional Evidence cases). confidences, Incorporated in the model codes of for there is no limit of time evidence, § (quoting beyond see id. 2292 n.2 Uniform which the disclosures not be suicide, prior committing of his client told him of the client or to the detriment used though testimony might even have estate. brought investigation); an end murder Wigmore, Evidence (trial Macumber, at 544 P.2d court II properly testimony attorneys excluded two that a other than the defendant had Justifiably unwilling to embrace the Inde- committing to them of confessed the murder abroga- call for wholesale pendent Counsel’s tried); for which defendant was see Si- also criminal cases in federal tion of Frankel, Attorney-Client mon J. Privi- death, today adopts court a client’s after Client,6 lege Death Geo. J. posthumous balancing under which a test After Legal But see Cohen Ethics turns on an ex availability Co., Pa.Super. v. Jenkintown Cab im- of the evidence’s post facto assessment (1976) (where testimony 357 A.2d party that neither to this portance, test sought did not contain “scandalous and im- that, notwithstanding advocates and litigation pertinent which matter would serve to black- Maj. Op. contrary, protestations to the client, memory” of the en the deceased departure represents a dramatic testimony “clearly where need for estab- rule. The court cites from the common law lished,” compel attorney court could to testi- rule, relying its new supporting no cases fy)- ac- views of commentators never instead on See, e.g., by any legislature. or cepted very good why court There ais reason no ease Wright colleagues’ & Kenneth W. supports my balancing law new Alan Charles consulting test: Unless clients know before Jr., Graham, Practice Proce- (1986 Supp.1997); lawyers exactly & what information the dure: Evidence particu- privilege protects knowledge Maj. Op. at 232-33. The court sees denied — court’s test —few will confide can- significance in a draft revision of the lar (Third) decision, didly fully. lawyers After this Governing Law Restatement important an caveat to what exception will have add Lawyers supporting confidentiality: they advise their clients about Maj. Op. law rule. to the common Restatement, however, candidly effectively ac- represent you I cannot unless I legislature or has I will all our con- knowledges everything. that “no court know hold exception. Restatement in the strictest of confidence. adopted” such an versations die, Governing Lawyers you But when could be (Third) the Law forced testify against your interests —in a crim- Final Draft No. (Proposed cmt. d trial, 1996). your investigation or even inal that the com- The court also observes family, or the court decides law rule is most often stated cases mon friends if prose- you important what me is tell testamentary exception involving the Now, tell the whole please cution. me manifesting post- “holdings actually story. relatively privilege are humous force of the o Maj. Op. (emphasis origi- rare.” not know Because clients s advised will nal). prove nothing. These observations protected, whether their confidences will be rarely ju- holdings appear not because Such likely or they will be to disclose sensitive less posthumous privilege recognition of dicial “If the potentially inculpatory information. situations “tepid,” id. at but because attorney-client privilege is to purpose of the attorney-client privilege is chal- where the served,” Up Court said rarely. occur lenged after a client’s death able to john, “the and client must be reported significantly, Most all but one degree certainty wheth predict with some protected.” was particular case where will be er discussions challenged after a client’s courts have at 684. As Upjohn, 449 S.Ct it, privilege, the result upheld put even where uncertain “[a]n the Court purports to the trier of fact. to be certain but results denied critical information one which courts, See, Jury Investiga- widely varying applications e.g., Doe John Grand tion, privilege at all.” Id. (attorney could not be is little better than no 562 N.E.2d at 72 reasoning, courts with this federal compelled testify what deceased Consistent about predict applicable, lawyers the clients and their cannot that where uniformly hold qualified day unlike attorney-client privilege, a Ghent’sstatement some whether Case, see, In re e.g., Sealed privileges, investigation, relate to a criminal much less (D.C.Cir.1997) (dealing with execu F.3d 550 applying my colleagues’ bal- whether a court specific requiring demon privilege and tive ancing subsequently test will decide that the importance stration of evidence’s significant aspect on a “bear[s] information unavailability from jury investigation and 235. Because of the crimes issue.” Id. at sources), by a cannot be overridden other uncertainty, balancing this the court’s test See, e.g., Admiral Ins. Co. showing of need. produces precisely “murkiness that the same the Dist. States Dist. Ct. of persuaded Upjohn the Court and Jaffee (9th Cir.1989) Ariz., 1486, 1494 reject proposed there.” Id. the limitations (conditional product doc protection of work sup logically extended to trine “cannot balancing test The court believes its will unavailability exception to the attor port an attorney-client damage the be- Jury In re ney-client privilege”); Grand people generally cause indifferent to the (2d Cir.1979) Subpoena, 599 F.2d posthumous effect disclosures of confidences unqualified); (attorney-client reputations. could have on their This as- Larkin, A. Priv Federal Testimonial Murl sumption unimportance the ileges 2.01, at 2-7 to 2-8 cases and however, reputation, runs counter to the ra- privilege has been held noting that “once the underlying tionale the common law rule. See protected applicable, information thereunder Frankel, Attorney-Client Privilege After subject compelled may disclo not be the the Death the Client at 61-63 & n.91. It good cause regardless sure of the need experi- also defies both common sense and shown”). citing For the same reasons and Carnegie’s ence. From Andrew libraries to Court, Supreme in the case of Upjohn, the foundation, Henry one Ford’s need rejected psychoanalyst privilege, a bal universities, count the schools and academic which, the one the court ancing test like scholarships, chairs and charitable founda- today, large part on the adopts turned tions, institutes, sports research are- sought by the importance of the information Congress bearing nas —even Acts of — prosecution: “Making promise of confi founders, benefactors, names of their or au- judge’s dentiality contingent upon a trial la beings thors to understand that human care importance of ter evaluation of the relative deeply posterity about how will view them. privacy patient’s interest and the evi surviving Evidence of concern for friends and dentiary would eviscerate need for disclosure wills, family people likewise abounds: write privilege.” Jaffee, the effectiveness of the insurance, convey property, buy life invest at-, 116 S.Ct. at 1932. education, for their children’s and make colleagues the absolute My characterize guardianship arrangements protect the in- attorney-client privilege “il- nature of the public terests of loved ones. Prominent offi- lusory.” Maj. Op. Pointing protect papers cials restrict access to their testamentary exception and to the well-ac- course, reputations. Of such concerns relating cepted proposition that statements every poten- influence decision to confide protection in illegality to future find no tially damaging attorneys. information to they attorney-client privilege, suggest very But because these concerns well pro- exception, limited to criminal their new decisions, particularly by affect some ceedings after the client’s will likewise ill, suicidal, aged, seriously or those not weaken the Both the testa- heightened post- with interests in their mentary exception and the exclusion of state- reputations, accept I humous cannot however, criminality, ments of future differ assumption court’s significantly test relationship will not suffer if the situations, adopts today. court those two agree after a limited client’s death. with certainty up know front with that the clients of Massachu- unprotected by Judicial Court they statements make are situations, privilege. Beyond given two clear setts: “to disclose information to [an those confidence, damage might humously outweigh whatever client even attorney] by a denying to the factfin flow from information might be limited to though such disclosure particular balancing in a Further death, in der case. would after the client’s period a case case basis will undermine the the client from on ... so deter many instances Moreover, limiting scope if of privilege. seriously impair the attor- as to ‘telling ah’ frank” attor deters “full and effectively.” function John ney’s ability to communication, as the common law ney-client Investigation, 562 N.E.2d Jury Doe Grand assumes, say who can absence sought privilege information later vividly illus- present case facts of the The proceedings would have been shared place reputa- a can on the value trate place? first As counsel the Su with tion. psychothera explained in the preme Court context, pist privilege “[without liti much of the desirable evidence to which unlikely ... ... to come gants seek access -, being.” Jaffee, into Salzburg, Privileges see also S.Ct. at 1929; Lawyers Psychia and Professionals: (1980) (“The trists, L. Rev. Va. privacy zone in which privilege creates a client can create information an not exist before and not exist that did Although con- otherwise.”). particularly will be re utility Clients prove can single that no case cede to share critical information with luctant privilege beyond a Ghent’s maintaining the lawyers in cases where both the client’s inappro- their death, particularly this ease seems possibility of criminal investi death and the abrogate the common priate one in which Perhaps this is such attorney- gation are foreseeable. protection of the law’s case, argument, for at oral the deceased’s lawyer told us: that because it limits suggests court The to criminal cases and be- test death, its liability ceases with cause criminal communications with

test will not chill client Maj. Op. at But lawyers. 233-34. lawyers much to their

clients often reveal crimi- about their own

more than information information liability: they may disclose nal limit the court’s any way can I see Nor friends, family, or business expose that could argument to cases “information loss” culpability does associates to criminal —which unable has died. Witnesses which the client well with the client’s death —as not terminate facts, testify, incompetent to or remember damage that could their own as information deny rel- process likewise beyond the court’s possible release of such reputations. The Yet nei- information to the factfinder. evant attorney-client chill the re- information could court Independent nor this ther the Counsel seriously lationship just as the release abrogate the suggests that we Ghent’s own criminal information about the evidentiary gaps. privilege to fill in these liability. unavailability a witness likewise does process factfinding greater harm to the no The court claims that unless inac- who testifies than an available witness information terminates at the clients suggest that curately. no would Again, one sought been will be lost that could have upon attorneys to corroborate call at 233-34. The we the ehent while ahve. Id. eveiy statement. rule, however, their clients’ long ago deter- correct law common infor- accepting that some simple: legal system reason the benefits mined factfinder, insu- to a mation be lost privilege post- gains through recognizing attorney-client relationship body policy from the a consistent determinations late the pro- legislatures reflecting state both ‘reason’ these intrusions order as prospect of ” — at-, Jaffee, ‘experience.’ Jaffee, U.S. the “‘confidence mote trust/” at-, (quoting at 1930 Funk v. (quoting at 1928 116 S.Ct. U.S. 371, 376-81, 913), Trammel, at (1933)). relationship 78 L.Ed. 369 The fact that necessary to work and to posthumous recognition the common law’s society its benefits. See Admiral Ins. afford testamentary disputes Co., (“Any outside inequity terms by every price appears have been embraced to information is the of access has integrity of the state that codified the system pays to maintain the —and remains the law those that have not— Neither the court nor Inde- privilege.”). simply against casting counsels it aside be- pendent any convincing has offered Counsel Independent cause the Counsel and a few why a client’s death should be treated reason question commentators its usefulness. That differently other circumstances. than these adopted by the common law rule was likewise attorney- At the end of discussion Committee, Advisory Court’s suggests the court that dis- well as who committees drafted the protect trict courts could clients’ interests Model Code of Evidence and the Uniform lawyers’ testimony ordering that their Evidence, Rules of the conclusion reinforces Maj. kept Op. at 235. But confidential. “ ” ‘experience’ support ‘reason’ and prosecution’s evidence essential case protection attorney-client ultimately trial remain confidential. cannot Id.; Citibank, Andros, N.A. v. event, privilege’s fundamental (8th Cir.1981) (Su- F.2d 1195 & n. 6 purpose encourage clients to share in- is to preme Proposed Court Rule of Evi- lawyers, not to maintain formation with 503(c) defining dence useful “as a source for confidentiality. Qualified the information’s the federal common law of promises confidentiality' worry, if —“Don’t privilege”). me, you compelled I am to reveal what tell Because the court’s test strikes a make sure that no one hears it the court will attorney-client privi- blow fundamental Attorney other than the and the federal lege jeopardizes legal its benefits to the grand jury” unlikely encourage wor- —are system society, respectfully dissent. to make candid and full disclo- ried clients attorneys. sures to their

Ill readily too

The court’s decision dismisses vitality continuing of the common law appropriate

rule in the states. “It is to treat notes applied And courts have after private House official and his ceased White jury proceedings grand death in both attorney. firm The and his law See, e.g., criminal trials. John Doe Grand quash subpoe- moved in district court to Jury Investigation, 408 Mass. nas, successfully claiming that the notes were Pena, (1990); People v. N.E.2d 69 Cal. protected by attorney-client privilege App.3d Cal.Rptr. work-produet privilege. by the Because we Doster, 276 S.C. 284 S.E.2d 218 State privileges think the district court read both broadly, too we reverse and remand for fur- proceedings. ther judicial Yet most references to the persistence ap after death Attorney-Client Privilege pear prelude as the have occurred apples application recognized exception— of a well jury disputes among the Ghent’s heirs and proceedings. Fed.R.Evid. (d). 1101(c) Frankel, supra, n. parties agree legatees.1 at 58 & (95% (380 400) out at issue would be covered of cases examined were communications claims, preferable applies only parties permit exception and thus it is 1. The when client,” "through claiming party not when to assert the See 2 Christo- neither justified against claims the estate. Some have Kirkpatrick, pher B. Mueller & Laird C. intent, furthering exception client’s (2d ed.1994). at 377-78 As Evidence explained while others have that in a will con- analysis, justification neither bears on our test, question of who assert the need not choose between them. resolving cannot be resolved without the merits holdings personal representative testamentary disputes). Thus actu- elient’s estate or suggests both that the termi- manifesting force of the ally winding up relatively nate on the of the estate and rare. See McCor- privilege are (“the primary litigation.2 reflects a focus on civil opera- mick on Evidence

Notes

notes en- 26(b)(3) Upjohn formulate a test for factual velope did not reserved Rule for “mental lawyer’s matter notes on conver impressions,” embodied think such material should finding sations with witnesses and in the case necessity be reachable when true is shown. “strong showing” necessity). it before no suggests lawyer Where the context that the sharply has focused or weeded the mate- Case, In In re Sealed 856 F.2d 268 26(b)(3) rials, ordinary Rule standard (D.C.Cir.1988), party asked Securities and apply. should Exchange lawyers deposition Commission on for their recollections of witness interviews. Our brief review of the documents reveals Citing Upjohn, portions containing 449 U.S. at factual material S.Ct. apparent identity applicable procedure 7. Because of this between the Rule 26 makes 26(b)(3), litigation grand jury subpoenas common law standard and that of Rule over or also de- appears privilege. to make little difference whether Fed- fines the substance of the See In re Case, 81(a)(3) merely eral Rule of Civil Procedure Sealed 676 F.2d at 808 49. n. sharpen adversary process, only on a vir- court thus opinion classified as could be improving quality judicial term. We decisionmak- view of the tually omnivorous ing development By of the law. and the accept the district court’s therefore cannot encouraging lawyers individuals consult they protected are their conclusion candidly fully, and disclose them entirety. attorney-client privilege also allows the na-

[*]

[*]

[*] legal profession help un- tion’s individuals the case to the and remand We reverse legal obligations derstand their and facilitate to reexamine the documents district court voluntary compliance their with them. Such may be opinion. of this The documents light voluntary compliance particularly impor- jury that the receives redacted so society tant to a free which neither has nor protected by neither portions that are those should want sufficient law enforcement re- work-product attorney-client nor punish every sources to search out and viola- id.; every tion of law. see also Trammel ordered. So States, 40, 51, v. United 906, 913, the Mat- * TATEL, Judge, dissenting: Circuit Jury Investigation, ter John Doe Grand 69, 70 408 Mass. 562 N.E.2d persuasive depart no reason Offered protec- from the common law’s attorney-client privilege recognizes ap- attorney-client privilege and tion of the legal “spring sound advice does encouraging “full preciating importance its lawyers’ heads as Athena did from the brow frank communication” clients with Case, Zeus,” In re Sealed lawyers, I would affirm the district (D.C.Cir.1984), depends “upon but instead privilege protects judgment that the court’s lawyer’s fully being informed with attorney’s notes of his conversation 389,101 Upjohn, client.” 449 U.S. at S.Ct. at client. I therefore need his now-deceased attorney- Although on occasion the not consider the notes whether can the effect of with “ha[ve] product. work holding from the factfin relevant information der,” Fisher L.Ed.2d (1976), privilege in individ courts sustain the courts of Finding expression its first accomplish larger systemic ual cases to England, see 8 Wigmore, Elizabethan Evi- compliance greater law benefits —the rev.1961), (McNaughton § 2290 dence judicial resulting from the proceedings fairer accepted in the courts of the United States legal advocacy” privi [and] “sound advice see, days republic, from the earliest lege promotes. Upjohn, 449 U.S. at Wheat.) (11 Reinicker, 24 e.g., Chirac v. (1826), 280, 294, attorney- 6 L.Ed.

Case Details

Case Name: In Re: Sealed Case

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Aug 29, 1997

Citation: 124 F.3d 230

Docket Number: 97-3006, 97-3007

Court Abbreviation: D.C. Cir.