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Attorney-Client Privilege: When the Client Dies

In 1998, the Supreme Court held in Swidler & Berlin v. United States that the attorney-client privilege survives a client’s death in the context of a criminal investigation. The underlying dispute involved Independent Counsel Ken Starr’s grand jury investigation of the dismissal of seven White House Travel Office employees (“Travelgate”) and the subsequent suicide of Vincent Foster, the acting Deputy White House Counsel at the time of the firings. When the grand jury subpoenaed the notes from a meeting between the late Foster and his attorney, the attorney and his firm, Swidler & Berlin, asserted attorney-client privilege over the notes and refused to comply. Eventually granting certiorari, the Supreme Court found that the privilege indeed prevented the notes’ disclosure—in other words, Foster’s attorney, like his client, was to take the exchange to his grave.

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