If you reveal your secrets to the wind, you should not blame the wind for revealing them to trees.
KHALID GIBRAN
The exact scope and extent of the Attorney-Client Privilege (Referred to as the Privilege) is still in controversy though it is one of the most venerable of the common law privileges.
In spite of the fact that the fundamental Legal Maxim is that “the public ……. has a right to every man’s evidence”,[1] the Courts in England,[2] America[3] and India[4] have protected the confidentiality of communications between Attorney and Client with few exceptions.
This privilege was recognized[5] as part of the law ‘for the benefit of the Client who gave confidential information to his lawyer in defending his case’ and ‘unless the client gives permission his lawyer cannot give evidence of this information’.
At least in theory, ‘Legal Professional privilege does not come to an end’ and it may subsist for many years’ is generally the accepted rule.
This rule was usually followed in many countries including India.
Some times it is also argued that ‘the privilege is only coextensive with the interest of the holder (the client) in preserving it’. Therefore, when client did not obtain any more benefit in preserving the privilege, it may be defeated by the interest of another person with an immediate need for access to the information given to the Attorney.
However, some commentators[6] recently began “to argue that the privilege should be limited particularly after the death of the client regard being had to the unavailability of relevant information”.[7]
The US Supreme Court (known as the ‘USSC’) had to grapple with the issue of preservation of the privilege even after the death of the client in Swindler & Berlin[8] in the year 1998.
The facts were ‘that 7 employees of White House Travel office were fired for some financial irregularities found in some Travel Office contracts entered into by the Government.
The US Attorney General asked the Office of Independent Counsel (Referred to as ‘IC’) to probe this matter of firing of the 7 employees.
Meanwhile, White House Deputy Counsel, Mr. Vincent Foster went to meet Mr.James Hamilton, an attorney in the Law Firm, Swindler & Berlin to inquire about legal representation relating to the dismissals. Hamilton took 3 pages of Hand written notes of this meeting after assuring Mr Foster that their conversation was privileged. Completely disturbed by the ugly turn of events, Foster committed suicide.
At the request of IC, in proceedings before The Federal Grand Jury, the Jury asked Hamilton and the Law Firm to produce the notes of the meeting with Foster.
Hamilton argued that the notes were protected under both Attorney-Client and Work Products privilege.
The Court of Appeals for the District of Columbia Circuit reversed the District Court ruling that “notes prepared by an Attorney need not be produced by not enforcing the subponae”.
Despite accepting that Courts have generally assumed that the privilege survives the death, The Circuit Appeals Court held that the client’s death calls for qualification of the privilege. The Circuit Court also held that ‘the “unavailability through death, coupled with the non-existence of any client concern for criminal liability after death, creates a discrete realm (use in criminal proceedings after the death of the client) where the privilege should not automatically apply”. As such, an attorney can be compelled to disclose client statements if they concerned a significant aspect of the crimes at issue and as aspect as to which there is a scarcity of reliable evidence”.
Finally, Hamilton brought this issue before the USSC.
The US SC, Lord Chief Justice Rehniqusit, writing for the majority, with Lords Justices Stevens, Kennedy, Souter, Ginsburg and Breyer joining with him, held that “privilege survives the death of the client in a case such as this” thus preventing the notes from disclosure.
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