SWIDLER & BERLIN V. UNITED STATES
524 U.S. 399 (1998)
NATURE OF THE CASE: This was a dispute over attorney client privilege after the client
has died.
FACTS: This was an investigation by the Independent Counsel into whether various
individuals made false statements or committed crimes during the investigation of the 1993
dismissal of employees from the White House Travel Office. Foster was White House counsel
when the firings occurred. Foster met with petitioner James Hamilton to seek legal
representation concerning possible congressional or other investigations of the firings.
Hamilton took notes during the two-hour meeting and one of the first entries on the notes is
the word Privileged. Nine days later Foster committed suicide. Two years later, a federal
grand jury, issued subpoenas to Hamilton and his law firm Swidler & Berlin. Petitioners
filed a motion to quash, arguing that the notes were protected by the attorney client
privilege and by the work product privilege. The District Court concluded that they were
protected. The Court of Appeals reversed; the risk of posthumous revelation when confined to
the criminal context would have no chilling effect on client communication as determined
from a balancing test. The Supreme Court granted certiorari.
ISSUE:
RULE OF LAW:
HOLDING AND DECISION:
LEGAL ANALYSIS:
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