Sealed Case, In re

• Decision Date: 29 August 1997
• Docket Number: 97-3007,Nos. 97-3006,s. 97-3006
• Parties: , 47 Fed. R. Evid. Serv. 327 In re: SEALED CASE
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 230

124 F.3d 230

326 U.S.App.D.C. 317, 47 Fed. R. Evid. Serv. 327

In re: SEALED CASE

Nos. 97-3006, 97-3007.

United States Court of Appeals, District of Columbia Circuit.

Argued June 20, 1997.

Filed Aug. 29, 1997.

Appeals from the United States District Court for the District of Columbia (Nos. 95ms00446, 95ms00447).

Brett M. Kavanaugh, Associate Counsel, Washington, DC, argued the cause for appellant, with whom Kenneth W. Starr, Independent Counsel, Washington, DC, Kimberly Nelson Brown and Craig S. Lerner, Associate Counsel, Washington, DC, were on the brief.

James Hamilton argued the cause for appellees, with whom Andrew L. Lipps, Michael L. Spafford, Washington, DC, William J. Mertens and Robert V. Zener, Washington, DC, were on the brief.

Before: WALD, WILLIAMS and TATEL, Circuit Judges.

Opinion for the court filed by Circuit Judge WILLIAMS.

Dissenting opinion filed by Circuit Judge TATEL.

STEPHEN F. WILLIAMS, Circuit Judge:

This case arises out of a grand jury investigation into the firing of White House travel office employees. The Office of Independent Counsel obtained grand jury subpoenas for notes of a conversation between a now-deceased White House official and his private attorney. The attorney and his law firm moved in district court to quash the subpoenas, claiming successfully that the notes were protected by the attorney-client privilege and by the work-product privilege. Because we think the district court read both privileges too broadly, we reverse and remand for further proceedings.

Attorney-Client Privilege

The attorney-client privilege applies to grand jury proceedings. Fed.R.Evid. 501, 1101(c) & (d). The parties agree that the communications at issue would be covered by the privilege if the client were still alive. The Independent Counsel, however, argues that the client's death calls for a qualification of the privilege. We agree.

Rule 501 provides that "the privilege of a witness ... shall be governed by the principles of the common law as ... interpreted by the courts ... in the light of reason and experience." Fed.R.Evid. 501; see also Jaffee v. Redmond, 518 U.S. 1, ----, 116 S.Ct. 1923, 1927, 135 L.Ed.2d 337 (1996). We take this to be a mandate to the federal courts to approach privilege matters in the way that common law courts have traditionally addressed any issue--observing precedent but at the same time trying, where precedents are in conflict or not controlling, to find answers that best balance the purposes of the relevant doctrines.

Courts have generally assumed that the privilege survives death. See Simon J. Frankel, "The Attorney-Client Privilege After the Death of the Client," 6 Geo. J. Legal Ethics 45, 47 (1992) (citing cases). Modern evidence codes often provide that the personal representative of a deceased client may assert the privilege. See Restatement (Third) of the Law Governing Lawyers § 127 Reporter's Note, comment c (Proposed Final Draft, March 29, 1996) ("Restatement"). And courts have applied the privilege after death in both grand jury proceedings and criminal trials. See, e.g., John Doe Grand Jury Investigation, 408 Mass. 480, 562 N.E.2d 69 (1990); People v. Pena, 151 Cal.App.3d 462, 198 Cal.Rptr. 819, 829 (1984); State v. Doster, 276 S.C. 647, 284 S.E.2d 218 (1981).

Yet most judicial references to the persistence of the privilege after death appear to have occurred only as the prelude to application of a well recognized exception--for disputes among the client's heirs and legatees. ¹ See Frankel, supra, at 58 n. 65 (95% of cases examined (380 out of 400) were testamentary disputes). Thus holdings actually manifesting the posthumous force of the privilege are relatively rare. See McCormick on Evidence § 94, at 348 ("the operation of the privilege has in effect been nullified in the class of cases where it would most often be asserted after death."). And such cases as do actually apply it give little revelation of whatever reasoning may have explained the outcome.

The Supreme Court's decision in Glover v. Patten, 165 U.S. 394, 17 S.Ct. 411, 41 L.Ed. 760 (1897), is cited for the proposition that the privilege survives death. See, e.g., Baldwin v. Commissioner of Internal Revenue, 125 F.2d 812, 814 (9th Cir.1942). In fact, however, Glover is simply a typical case that asserts the general principle of the privilege's survival after death, but finds it inapplicable to disputes among persons "claiming under the client." 165 U.S. at 407, 17 S.Ct. at 416. Even the Court's endorsement of the privilege's survival in ordinary circumstances was rather tepid. It observed that "such communications might be privileged if offered by third persons to establish claims against an estate," id. at 406, 17 S.Ct. at 416, and quoted Russell v. Jackson, 9 Hare 387, 393, 68 Eng. Rep. 558, 560 (1851), which stated only that "the privilege does not in all cases terminate with the death of the party," and belongs to "parties claiming under the client as against parties claiming adversely to him." Id., quoted in Glover, 165 U.S. at 407, 17 S.Ct. at 416. Compare Cal. Evid.Code § 954, comment (1997) ("[T]here is little reason to preserve secrecy at the expense of excluding relevant evidence after the estate is wound up and the representative is discharged."). In short, there is little by way of judicial holding that affirms the survival of the privilege after death, and the framing of the posthumous privilege as belonging to the client's estate or personal representative both suggests that the privilege may terminate on the winding up of the estate and reflects a primary focus on civil litigation. ²

Although courts often cite as axiomatic the proposition that the privilege survives death, commentators have, with one distinguished exception, generally supported some measure of post-death curtailment. The exception, Wigmore, proclaimed that there was "no limit of time beyond which the disclosures might not be used to the detriment of the client or of his estate." 8 Wigmore on Evidence § 2323, at 630-31 (McNaughton Rev.1961). But others have sharply criticized his view. The most emphatic statement is that of Wright & Graham, who wrote, "One would have to attribute a Pharaoh-like concern for immortality to suppose that the typical client has much concern for how posterity may view his communications." 24 Charles A. Wright & Kenneth W. Graham, Federal Practice and Procedure: Evidence § 5498, at 484 (1986); see also Restatement § 127, comment d ("Permitting such disclosure would do little to inhibit clients from confiding in their lawyers") ³; 1 McCormick on Evidence § 94, at 350 (4th ed.1992) (terminating the privilege at death "could not to any substantial degree lessen the encouragement for free disclosure"); 2 Mueller & Kirkpatrick § 199, at 380 ("Few clients are much concerned with what will happen sometime after the death that everyone expects but few anticipate in an immediate or definite sense").

Presumably depending on their confidence in their judgments as to the residual chilling effect on clients, commentators have proposed a range of substitute rules. Some have embraced Learned Hand's view that the privilege should not apply at all after death, see, e.g., ALI Proceedings, 1942, quoted in 24 Wright & Graham § 5498, at 485; 1 McCormick on Evidence § 94, at 350, while the American Law Institute has suggested a general balancing test, proposing that

a tribunal be empowered to withhold the privilege of a person then deceased as to a communication that bears on a litigated issue of pivotal significance. The tribunal could balance the interest in confidentiality against any exceptional need for the communication. The tribunal also could consider limiting the proof or sealing the record to limit disclosure.

Restatement § 127, comment d.

The justification for the attorney-client privilege has largely been an instrumental one, resting on a belief that it greatly facilitates--perhaps is essential to--the provision of legal advice. Such assistance "can only be safely and readily availed of when free from the consequences or the apprehension of disclosure." Hunt v. Blackburn, 128 U.S. 464, 470, 9 S.Ct. 125, 127, 32 L.Ed. 488 (1888). In addition, some have spoken of privacy concerns, see Frankel, supra, at 53-54 & nn.41-45 (citing commentators), but it seems fair to say that these have played at best a secondary role. In any event, because the privilege obstructs the truth-finding process, it is, we have said, to be narrowly construed. In re Grand Jury Investigation of Ocean Transp., 604 F.2d 672, 675 (D.C.Cir.1979).

The object, presumably, is to maximize the sum of the benefits of confidential communications with attorneys and those of finding the truth through our judicial processes. Even if the focus were solely on truth-seeking, dispensing with the privilege altogether would presumably have negative results. Any rule qualifying the privilege may in at least some cases (once it is adopted) cause some clients to confide less in their attorneys; the communication that is stillborn can never be disclosed. And abrogation of the privilege would clearly impair the provision of legal services. Except to the extent that limits on the privilege actually chill the hoped-for communications, however, its application renders judicial proceedings less accurate.

Wright & Graham's supposition that favoring survival of the privilege after death requires imputing a "Pharaoh-like concern" to clients may be a bit of an exaggeration. But it is surely true that the risk of post-death revelation will typically trouble the client less than pre-death revelation. The question is how much less, and the answer seems likely to depend on the context. On one side, criminal liability will have ceased altogether. Civil liability, on the other hand, characteristically continues, and the same impulses that drive people to provide for their families in life clearly create a motive to preserve...