News Release

Supreme Court To Hear Posthumous Privilege Case

Statement of NACDL President Gerald B. Lefcourt

Washington, DC (March 30, 1998) -- The U.S. Supreme Court today granted certiorari in Swidler & Berlin v. United States, No. 97-1192. The National Association of Criminal Defense Lawyers filed an amicus curiae brief in the case in support of James Hamilton, of D.C. law firm Swidler & Berlin, who was White House counsel Vincent Foster's attorney before his death in 1993. After Mr. Foster's death, Mr. Hamilton's client file was subpoenaed by the Office of the Independent Counsel as part of the Whitewater investigation. A split decision by the federal Court of Appeals for the D.C. Circuit upheld the subpoena, saying that the attorney-client privilege does not necessarily survive the death of the client.

NACDL President Gerald B. Lefcourt issued the following statement explaining the importance of today's decision: 

"Citizens have a right to expect that confidential communications with their lawyer will remain confidential, even after their death, which is why the National Association of Criminal Defense Lawyers was joined by the American Corporate Counsel Association and the National Hospice Association in supporting Swidler & Berlin's request that the Supreme Court review the case. The attorney-client privilege would be dangerously compromised if the decision below is allowed to stand. Many Americans, particularly the elderly and the terminally ill, would be reluctant to consult freely with their lawyer if they know that their confidences could be violated after they die. That would render the privilege a cruel farce."

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NACDL Communications Department

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.