What I Say to My Lawyer Is Just Between Us ... Isn't It?
When Aunt Sally contemplates leaving her jeweled brooch to sister Lydia, she talks over with her lawyer her worry that Lydia's son Joe might hock it to feed his drug habit. Upon reflection, Aunt Sally decides to bequeath the brooch to cousin Emma instead. Aunt Sally never would have consulted the lawyer if she knew his notes of that conversation would surface if Lydia contested the will.
From at least 1908 until now, Aunt Sally need not have feared that discussion. Her secret was safe with her lawyer, under the doctrine of attorney-client privilege. But if independent counsel Kenneth Starr has his way, Aunt Sally - and indeed all of us - risk disclosure of our secrets.
The events unfolding in Washington these days sometimes seem like surreal Beltway melodramas. But a real drama is playing, too, and it will decide how much confidence each one of us can have that our lawyer will be able to keep our confidences.
Aunt Sally's dilemma is no different than that of the late Vincent Foster. Mr. Foster consulted a lawyer, James Hamilton, before his death. Mr. Starr believes Mr. Hamilton's notes may contain evidence for his Clinton administration investigation and asked the US Court of Appeals for the District of Columbia to require Hamilton to surrender them. The Court of Appeals ruled a client's death weakens the historic privilege and ordered Hamilton to comply.
In thousands of nursing homes, hospitals, retirement communities, and law offices, men and women tell their lawyers what they would never tell their families, bankers, or local constabulary. They seek confidential guidance in how best to provide for their loved ones after death. The secrets they share may be embarrassing to themselves or others; they may relate to sensitive business transactions; they may put others at risk; they may create or destroy financial opportunities for unknown observers.
Some clients may wish to make amends for a previous misdeed by themselves or someone else. Some may wish to explore their options to dispose of hard-earned assets - cousin Emma instead of sister Lydia. Like Foster, they may be contemplating suicide. Or they may simply view their actions as prudent planning.
If the circuit court's ruling stands, each will be faced with a cruel choice. Hoping to order their affairs to best safeguard their heirs and their own wishes, they may consult a lawyer, whose first step will likely be to caution them that anything they say could end up disclosed to police, Medicare investigators, or a grand jury. Imagine - Miranda-like warnings for the aged or ill, coming from their own lawyers. What should they do? Should they seek their lawyer's help and risk unwanted exposure? Or should they forego legal counsel and perhaps even risk the security of those they love?
Because Vincent Foster is dead, the court reasoned, he cannot be held liable for a crime. The client's interest wanes, and the prosecutor's needs prevail. Under that logic, the court presumes Aunt Sally won't care if, after her death, her discussion alerts the authorities to her nephew's drug history. The court presumes that clients won't care if their secrets risk exposing family members to criminal prosecution. But if the clients really were so indifferent to what might happen after they die, they would not have bothered consulting lawyers.
THE lawyer-client privilege is the oldest legally sanctioned confidence known to the common law. Its purpose is to encourage full and frank communication between lawyers and clients. It recognizes that sound legal advice serves the public interest, and that such advice depends on a lawyer being fully informed by a client who has enough trust in the confidentiality of the relationship to be frank.
The American Bar Association seeks Supreme Court review of the circuit court ruling. As Justice Robert H. Jackson said in 1947: "[I]t too often is overlooked that the lawyer and the law office are indispensible parts of our administration of justice." As Chief Justice Leuel Shaw of the Supreme Judicial Court of Massachusetts said more than 150 years ago, the privilege requires that confidences to an attorney "shall be for ever sealed."
* Jerome J. Shestack is president of the American Bar Association.