News Release

Supreme Court Confirms Attorney-Client Privilege, Even After Death

'Highest Traditions of Jurisprudence'

Statement of NACDL President Gerald B. Lefcourt
Washington, DC (June 25, 1998) -- The Supreme Court of the United States today handed down its most important decision of the term, Swidler & Berlin v. United States, No. 97-1192, reaffirming the sanctity of the attorney-client privilege. Clients consult attorneys for a variety of reasons, many of which are not admissions of crime, but which the client nonetheless would not wish divulged, even after death. The attorney-client privilege was already well-established in Elizabethan England, and as Chief Justice Rehnquist notes in his opinion, the posthumous attorney-client privilege has been recognized in this country for well over a century. The National Association of Criminal Defense Lawyers hails today's decision as a victory for all Americans. NACDL's friend-of-the-court brief was authored by Mark I. Levy, Howrey & Simon, Washington, D.C., and was joined by the American Corporate Counsel Association and the National Hospice Organization.

Praising today's decision, NACDL President Gerald B. Lefcourt, New York City, released the following statement:

"Kudos to a Supreme Court which, in the highest traditions of jurisprudence, is willing to clamp down on an out-of-control Independent Counsel bent on compromising time-honored legal principles to accommodate an uncompromising zeal to snare a President of the United States. Years from now, we'll look back upon our system of justice in America and herald the wisdom of our highest court in upholding one of the most precious rights guaranteed by our Constitution -- the right to counsel and the attendant need for respecting the confidentiality of attorney-client discussions.

"Many citizens, particularly the elderly and the terminally ill, would be reluctant to consult freely with a lawyer if they knew that their confidences could be readily violated after they die. That would render the attorney-client privilege a cruel farce, and imperil the very basis of our adversary system in America, which is the ability to freely consult counsel and obtain informed advice.

"The majority, led by the Chief Justice, wisely refused to bend one of the oldest common-law privileges to satisfy the rush to judgment of an overzealous prosecutor. The rights and privileges of all Americans should not be ripped asunder even by an investigation of the President of the United States. Overzealousness in the prosecution of any person is a vice, and the Court has judiciously ruled against it." 

[Click Here] for the text of the Supreme Court's decision.

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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.