Swidler & Berlin v. United States

524 U.S. 399 (1998)

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Nature of the Case

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Facts

This was an investigation by the Independent Counsel into whether various individuals made false statements or committed crimes during the investigation of the 1993 dismissal of employees from the White House Travel Office. Foster was White House counsel when the firings occurred. Foster met with petitioner James Hamilton to seek legal representation concerning possible congressional or other investigations of the firings. Hamilton took notes during the two-hour meeting, and one of the first entries on the notes is the word Privileged. Nine days later Foster committed suicide. Two years later, a federal grand jury, issued subpoenas to Hamilton and his law firm Swidler & Berlin. Petitioners filed a motion to quash, arguing that the notes were protected by the attorney-client privilege and by the work product privilege. The District Court concluded that they were protected. The Court of Appeals reversed; the risk of posthumous revelation, when confined to the criminal context, would have no chilling effect on client communication as determined from a balancing test. The Supreme Court granted certiorari.