When Aunt Sally contemplates leaving her jeweled brooch to sister Lydia, she talks over with her lawyer her worry that Lydia's son Joe might hock it to feed his drug habits. Upon reflection, Aunt Sally decides to bequeath the brooch to cousin Emma instead. Aunt Sally would never have consulted the lawyer if she knew his notes of that conversation would surface if Lydia contested the will.
From at least 1908 until now, Aunt Sally need not have feared that discussion. Her secret was safe with her lawyer, under the doctrine of attorney-client privilege.
But if independent counsel Kenneth Starr has his way, Aunt Sally - and indeed all of us - risk disclosure of our secrets.
The events unfolding in Washington these days sometimes seem like surreal Beltway melodramas, with tinsel characters displaced off the silver screen. But the real drama they are playing will decide how much confidence each one of us can have that our lawyer will be able to keep our confidences.
Aunt Sally's dilemma is no different than that of the late Vincent Foster.
Foster privately consulted an attorney, James Hamilton, shortly before his death. Starr believes Hamilton's notes may contain evidence for his Clinton administration investigation, and asked the U.S. Court of Appeals for the District of Columbia to require Hamilton to surrender them. The court of appeals ruled that a client's death weakens the historic privilege and ordered Hamilton to comply.
In thousands of nursing homes, hospitals, retirement communities and law offices around this country, men and women tell their lawyers what they would never tell their families, their bankers or their local constabulary. They seek confidential guidance in how best to provide for their loved ones after death. The secrets they share may be embarrassing to themselves or others; they may relate to sensitive business transactions; they may put other individuals at risk; they may create or destroy financial opportunities for unknown observers.
Some clients wish to provide for an illegitimate child. Some wish to make amends for a previous misdeed by themselves or someone else. Some simply wish to explore their options to dispose of hard-earned assets in unexpected ways - cousin Emma instead of sister Lydia.
Like Foster, they may be contemplating suicide. Or like Aunt Sally, they may simply recognize the risks of advancing age, and view their actions as prudent planning.
If the circuit court's ruling stands, each will be faced with a cruel choice. Hoping to order their affairs to best safeguard their heirs and their own wishes, they may consult a lawyer, whose first step will likely be to caution them that anything they say could end up disclosed to the police or Medicare investigators or a grand jury. Imagine that - Miranda-like warnings for the aged and terminally ill, coming from their own lawyers. What should they do? Should they seek their lawyer's help and risk unwanted exposure? Or should they forego legal counsel, and perhaps even risk the security of those they love.
Because Vincent Foster is dead, reasoned the court, he cannot be held liable for a crime. The client's interest wanes and the prosecutor's needs prevail. Under that logic, the court presumes Aunt Sally won't care if, after her death, her discussion alerts the authorities to her nephew's drug history. The court presumes that clients won't care if their secrets risk exposing family members to criminal prosecution after the client dies. The court presumes that clients have little interest in their own reputations after death. But if clients really were so indifferent to what might happen after they die, they would not bother consulting lawyers in contemplation of their death.
The lawyer-client privilege is the oldest legally sanctioned confidence known to the common law. Its purpose is to encourage full and frank communication between lawyers and clients. It recognizes that sound legal advice serves the public interest, and that such advice depends on a lawyer being fully informed by a client who has enough trust in the confidentiality of the relationship to be frank.
The ABA seeks Supreme Court review of the District of Columbia Circuit ruling.
As Justice Robert H. Jackson said in 1947: "[I]t too often is overlooked that the lawyer and the law office are indispensable parts of our administration of justice."
As Chief Justice Leuel Shaw of the Supreme Judicial Court of Massachusetts said more than 150 years ago, the privilege requires that confidences to an attorney "shall be for ever sealed."
Jerome J. Shestack is president of the American Bar Association.