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Title ATTORNEY CLIENT PRIVILEGE
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Article by Chadalavada Raghuraman
Category Faculties of Law
Content

ATTORNEY-CLIENT PRIVILEGE—DOES IT SURVIVE THE DEATH OF CLIENT—STATE OF LAW IN US, ENGLAND AND INDIA

 

 

 

If you reveal your secrets to the wind, you should not blame the wind for revealing them to trees.

                        

                                                                                                      KHALID GIBRAN

 

 

The exact scope and extent of the Attorney-Client Privilege (Referred to as the Privilege) is still in controversy though it is one of the most venerable of the common law privileges.

 

 

In spite of the fact that the fundamental Legal Maxim is that “the public ……. has a right to every man’s evidence”,[1] the Courts in England,[2] America[3] and India[4] have protected the confidentiality of communications between Attorney and Client with few exceptions.

 

 

This privilege was recognized[5] as part of the law ‘for the benefit of the Client who gave confidential information to his lawyer in defending his case’ and ‘unless the client gives permission his lawyer cannot give evidence of this information’.

 

 

At least in theory, ‘Legal Professional privilege does not come to an end’ and it may subsist for many years’ is generally the accepted rule.

 

 

This rule was usually followed in many countries including India.

 

 

 Some times it is also argued that ‘the privilege is only coextensive with the interest of the holder (the client) in preserving it’. Therefore, when client did not obtain any more benefit in preserving the privilege, it may be defeated by the interest of another person with an immediate need for access to the information given to the Attorney.

 

 

However, some commentators[6] recently began “to argue that the privilege should be limited particularly after the death of the client regard being had to the unavailability of relevant information”.[7]

 

 

The US Supreme Court (known as the ‘USSC’) had to grapple with the issue of preservation of the privilege even after the death of the client in Swindler & Berlin[8] in the year 1998.  

 

 

The facts were ‘that 7 employees of White House Travel office were fired for some financial irregularities found in some Travel Office contracts entered into by the Government.

 

 

 The US Attorney General asked the Office of Independent Counsel (Referred to as ‘IC’) to probe this matter of firing of the 7 employees.

 

 

 

Meanwhile, White House Deputy Counsel, Mr. Vincent Foster went to meet Mr.James Hamilton, an attorney in the Law Firm, Swindler & Berlin to inquire about legal representation relating to the dismissals. Hamilton took 3 pages of Hand written notes of this meeting after assuring Mr Foster that their conversation was privileged. Completely disturbed by the ugly turn of events, Foster committed suicide.

 

 

 

At the request of IC, in proceedings before The Federal Grand Jury, the Jury asked Hamilton and the Law Firm to produce the notes of the meeting with Foster.

 

 

Hamilton argued that the notes were protected under both Attorney-Client and Work Products privilege.

 

 

The Court of Appeals for the District of Columbia Circuit reversed the District Court ruling that “notes prepared by an Attorney need not be produced by not enforcing the subponae”.

 

 

 

Despite accepting that Courts have generally assumed that the privilege survives the death, The Circuit Appeals Court held that the client’s death calls for qualification of the privilege. The Circuit Court also held that ‘the “unavailability through death, coupled with the non-existence of any client concern for criminal liability after death, creates a discrete realm (use in criminal proceedings after the death of the client) where the privilege should not automatically apply”. As such, an attorney can be compelled to disclose client statements if they concerned a significant aspect of the crimes at issue and as aspect as to which there is a scarcity of reliable evidence”.   

 

 

 

Finally, Hamilton brought this issue before the USSC.

 

 

 

The US SC, Lord Chief Justice Rehniqusit, writing for the majority, with Lords Justices Stevens, Kennedy, Souter, Ginsburg and Breyer joining with him, held that “privilege survives the death of the client in a case such as this” thus preventing the notes from disclosure.

 

 

 

Justice Rehnquist began by recognizing that “the privilege is intended to encourage full and frank communication between attorneys and clients”[9] and its extent and scope is “guided by the principles of the common law (as…...) interpreted by courts.. …in the light of reason and experience.” 

 

 

 

Accepting that “the privilege may be subject to posthumous exceptions in certain circumstances,”—mostly involving the Testamentary Exception[10] the majority noted that the “cases addressing the existence of the privilege after death uniformly presume the privilege survives,[11] even if they do not so hold.”  Thus, the Court determined that the prevailing case law supported the application of the privilege in the case, and that “at the very least the burden is on the IC to show that ‘reason and experience’ require a departure from this rule”and the IC did not meet this burden.[12]

 

 

 That a client’s concern about reputation, civil liability, or possible harm to his friends and family could inhibit his communications with his attorney if the client feared that the privilege would cease to apply after his death. As such, the Court noted that the “loss of evidence admittedly caused by the privilege is justified in part by the fact that without the privilege, the client may not have made such communications in the first place.”[13]

 

 

Finally, the majority held that “ the acceptance of a posthumous exception to the attorney-client privilege would require, not simply to construe the privilege, but to narrow it contrary to the weight of the existing body of case law.”[14]

   

 

When IC argued that ‘privileges be strictly construed because they are inconsistent with the paramount judicial goal of truth seeking’ by referring to the decisions inNixon[15] and Branzburg[16], Their Lordships declined to follow those cases by drawing a neat distinction by pointing out that those two cases ‘were about the creation of privileges not recognized by the common law while the present case was about ‘one of the oldest recognized privileges in the law.”

 

 

 

Even while agreeing that the privilege‘ordinarily will survive the death of the client’, Justice O’Connor expressed her dissent[17] to the opinion held by majority that“that the privilege automatically precluded production of Hamilton notes”.[18]

 

 

According to Justice Connor,a criminal defendant’s right to exculpatory evidence or a compelling law enforcement need for information may, where the testimony is not available from other sources, override a client’s posthumous interest in confidentiality.” Her Lordship also held that“a posthumous privilege could undermine the central truth-seeking function of the courts by preserving a client’s interest in confidentiality at the expense of criminal justice system’s two fold aims------that guilty shall not escape or innocent suffer.”

 

 

Therefore the minority opinion declared that“the DC Court should re-examine the Hamilton Notes to balance these competing circumstances and decide whether the privilege should be trumphed in the particular circumstances of this case.”[19]

 

 

But the majority ‘rejected this ex post balancing test since courts traditionally presumed that any uncertainty concerting the confidentiality of client communications will hamper a client’s willingness to share potentially damaging information with his attorney.”[20]

 

 

 

The IC before the USSC was not content with this balancing approach but wanted a ‘blanket rule’ for completely lifting the privilege when the client had died and the communication is relevant in a criminal prosecution. He referred ‘to some of the testamentary exceptions wherein the privilege had come to an end when the client died and confidentiality was no longer applied for the purpose of settling the estate of the client.

 

Both the blanket rule and the balancing approach were rejected by the majority.

 

The majority justified that “testamentary exceptions to the privilege were allowed as it held in knowing client’s wishes as to how this estate should be distributed among the beneficiaries”.

 

It was also not accepted that “the client would have wished that confidential communication should be disclosed to the prosecution even after his death” as this was only a general assumption but not a universal assumption.[21]

 

 

Justices O’Connor and Scalia and Thomas are in favor of the balancing approach but they too rejected the blanket rule.

 

 

Coming to the position in England, in Bullivant and Others V. Attorney General (Called ‘AG’) of Victoria[22](a case from Australia) The House of Lords[23] addressed this issue ‘of lifting the privilege after the death of the client’ when the AG sought disclosure of certain documents—like settlements, conveyances etc. of some estates—prepared for, and executed by a deceased client Mr. James Austin—who also left his ‘Will’-- before his death in the names of the Appellant and others--being the Solicitors and also appointed as Executors--on the reason that ‘these documents were executed for evading some duty’[24] under the Victorian—Colonial---Law[25] at that time.

 

 

The request for disclosure of the above documents was opposed by Appellants as these were ‘confidential papers between the Attorneys and their client’.

 

 

Lord Lindley[26] alone explained the state of law, when his Lordship, in response to the argument ‘that the privilege is gone as the testator-client is dead’, said that ‘this was not sufficient answer’ and also pointed that he ‘never heard it stated before’ in order to lift the privilege.

 

 

 

Lord Lindley accepted that ‘there are some passages’ in the ruling given by Turner V.C in Russel V. Jackson[27] that “it was a good answer (in contrast to the opinion of Lord Lindley as explained in the above context) to the ‘question as to what happens to the privilege on the death of client’ but that decision was not acceptable to his Lordship.

       

 

Lord Lindley also held that ‘the mere fact that a testator is dead does not destroy the privilege. The privilege is founded upon the views of which are taken in this country of public policy, and that privilege has to be weighed and unless the people concerned in the case of an ordinary controversy like this waive it, the privilege is not gone—it remains”.[28]

 

In the end[29]“the request for disclosure by AG was rejected”[30] by all The Lords.[31]

 

Not lifting the privilege even after the death of the client may be a costly mistake when the only source of information is the client and he is dead. Justice requires that the prosecution of the guilty should be assured.

 

 

On the other hand, the cost of lifting the privilege after death is very low as ‘the potential that the disclosure will harm the client’s interests has been greatly diminished and the risk that the client will be held criminally liable has abated[32] altogether.” Justice also requires that a fair trial and opportunity is to be given to every accused in preparing for his disease.

 

 

Precisely for the above reason, both the Testamentary and Crime-Fraud exceptions[33] to the attorney-client privilege operate ex ante ----as both are of a character that the client and the attorney would, in theory, at least, be able to know at the time of consultation, that the privilege would not later shield confidences from discovery.”

 

 

 

The majority opinion in Swindler was vulnerable to a criticism.

 

 

 

 

The argument of IC that ‘a posthumous exception to the privilege does not discourage a full and frank communications with Attorney’ was dismissed by the majority as purely speculative.

 

 

But the opposite view held by majority that ‘an exception in the present circumstances will dampen the client’s willingness to freely communicate with his Attorney’ is equally speculative.

 

 

It is very interesting to observe that in R .V. Derby Magistrates Court, Ex p B[34], though not a case of a claim for lifting the privilege on death of client but in the interest of an accused to make use of the privileged information in preparation for his defense, Lord Lloyd[35] was in favor of ‘balancing approach’ --advocated by minority in USSC--when he declared that “there is no inherent difficulty in the balancing approach proposed in the case as this task is no harder in the case of legal professional privilege than it is in case of a claim to withhold documents on the ground of public interest[36] immunity.”[37]

 

 

 Of course, Lords Taylor,[38] Mustill, Keith and Nicholls in the above case did not share this opinion.[39]

 

 

Now in India, the law relating to the Attorney-Client privilege is given in Sec. 126 of The Indian Evidence Act, 1872’. (known as ‘The 1872 Act’)

 

 

 

There appears to be no straight ruling on this most important issue regarding ‘the status of the privilege after the death of the client’ in India.[40]       

 

 

Lord Ramaswami, in Ayesha Bi V. Peekam Shabib and Others[41], merely expressed an opinion in his passing remarks that ‘the privilege continues throughout and does not get terminated by the termination of the litigation or death of the parties’

 

I think that ‘this decision is not a direct authority for the principle that death of a client does not put an end to the privilege as there was ‘no such death of the client in this case and this point was not directly in issue before the J. Ramaswamy.’

 

 

The Explanation to Sec.126 of 1872 Act informs us that ‘the legal obligation of the Attorney to keep the lid on the communications does not come to an end even after the employment has ceased between the client and his attorney’.

 

 

Whether ‘the privilege can be kept intact despite the death of the client’ is very controversial and debatable point in view of the interpretation that is to be given to the words ‘even after the employment has ceased’ found in the above explanation.

 

 

In the literal and strict interpretation of the above explanation it can be submitted that ‘the relationship between Attorney and client relationship does not end with the death of the client’ so that the communications will be permanently buried with justice being denied in some other deserving cases depending on the disclosure of privileged communications.

 



[1]Evidence in Trials at Common Law’ by John Henry Wigmore 2192, at 70 (by Ed. John T, McNaughton, 1961, Revised Edition.). See the famous Statement of Benntham, “Were the Prince of Wales, The Archbishiop of Canterbury, and The Lord High Chancellor, to be passing by in the same coach, while a chimney-sweeper and a barrow-woman were in dispute about a halfpenny worth of apples, and the chimney-sweeper or barrow-woman were to think proper to call upon them for their evidence, could they refuse it? No, most  certainly.”— 4 The Works of Jeremy Bentham 320-321, 1843 Edition, edited by Justice Bowring.      

[2] Dennis  V. Codrington 21 Eng. Rep. 51, 53 (Ch.1580)

[3]Hunt V. Blackburn 128 U.S.  464, 470 (1888) That an attorney “shall not be compelled by subpoena, or otherwise, to be examined upon any matter…….wherein he….was of counsel, either by the indifferent  choice of both parties, or with either to them by reasons of any annuity or fee.”  

[4] Ref. to the earliest cases of Hakam V. Emperor AIR  1934 Lahore 269 and Kalikumar Pal V. Rajkumar Pal AIR 1932 Cal. 148        

[5] Lord Cockburn declared in Bullock V. Corrie (3) QBD 356 that “a communication once privileged is always privileged”. Lord Lindley too, in Calcroft V.Guest (1889) 1 QB 759, said “I take it that as a general rule, one may say once privileged always privileged” but added:  “I do not mean to say that privilege cannot be waived”.    

[6] See the Note ‘THE ATTORNEY CLIENT PRIVILEGE AND A REVISED RULE PERMITTING LIMITED DISCLOSURE AFTER THE DEATH OF THE CLIENT’ by Brian R. Hood 7 GEO J. LEGAL ETHICS 741, 779 (1994) suggesting disclosure “to potentially exculpate a criminal defendant whom the lawyer has reason to believe is innocent based upon information the lawyer knows about a client who has subsequently died. Also see FEDERAL PRACTISE AND PROCEDURE By Charles Alan Wright & Kenneth Graham Jr. 1986 Ed. At Page 484 noting that “imposing the privilege after the death will often result in a loss of crucial information because the client is no longer available to be asked what he knows.”  

[7] The privilege may survive for many years and may pass from the original holder to a successor although there is the danger that a waiver may have occurred during the process.

[8] Swidler & Berlin V. U.S. 118 S. Ct. 2081 (1998)

[9] UpJohn Company V. US 449 US 383,389 (1981)

[10] Glove V. Patten 165 US 394 (1897) The SC held that ‘in a suit between the devisees under a will, statements made by the deceased to counsel respecting the execution of the will …..are not privileged. While such communications might be privileged, if offered by third persons to establish claims against an estate, they are not within the reason of the rule requiring their exclusion, when the contest is between the heirs  or next of kin”

[11] In Cohen V. Jenkintown Cab Co. 238 Pa Super. Ct. 456 (1976), the only single case that went in the opposite direction in US, The Pensylvania Superior Court held that “privilege may not apply after the death of client and the issue be decided on the balancing approach by examining the competing claims of disclosure or non-disclosure of confidential communications when there may be no injury to the rights, estate or memory of the deceased client”.

[12] Supra note 8, at p 2088

[13] A theory that ‘it seems quite plausible that Foster, perhaps already contemplating suicide, may not have sought legal advice from Hamilton if he had not been assured the conversation was privileged’ was developed after referring to Jaffee V. Redmond 518 U.S. I, 12 (1996) & Fisher V. U.S 425 U.S. (1976)    

[14] Supra note 8, at p 2088

[15] U.S. V. Nixon 418 US 683 (1974)

[16] Branzburg V. Hayes 408 US 665 (1972), This was an Appeal to the USSC on  “the preservation of journalist’s privilege in not disclosing the sources of the information as it was obtained in confidence” which was rejected by a 5 to 4 majority ‘as journalists have no such privilege in proceedings before Grand Jury against journalists’ under First Amendment to US Constitution.

[17]  Her honor was not alone. Justices Scalia and Thomas also joined her.

[18] The majority rejected the IC submission that “the impact of another exception to the privilege would be ‘marginal’ because  ‘ano harm in one more exception’ rationale could contribute to the general erosion of the privilege, without reference to ‘common law principles of reason and experience’ test. There are about 8 exceptions to the preservation of this privilege. For complete information, refer to “Discovery” by Matthews and Malek, 1993 Edition at page 181

[19] The 3 dissenting Lords also held that the work-product privilege should not apply when the material concerns a client who is no longer a potential party to adversarial litigation.

[20] See the Dictum in UpJohn wherein the USSC held that “an uncertain privilege or one which purports to be certain but results in widely varying applications by the Courts, is little better than no privilege at all.”

[21] For instance, in R V. Jack, (1992) 70 C.C.C. (3d) 67 when the accused was tried for the murder of his wife, the wife’s lawyer gave evidence for the prosecution,The Manitoba Court of Appeal in an opposite ruling held (at page 91) that “the lawyer was rightly allowed to testify on communications with the diseased, even if it were privileged, as this was in the interests of both the client ……and the administration of justice.” 

[22] (1901-3) All ER 812

[23] This is an Appeal from the decision of the Court of Appeal given by Lords Hen Collins and Romer.

[24] Id. At p 813

[25] Sec.115 of the Administration and Probate Act of Victoria 1890 provides that “if any person makes any conveyance or assignment, gift, delivery or transfer of any estate, real or personal or of any money or securities for money, with intern to evade the payment of duty, such property shall still be liable to duty.”

[26] Id. at p 816

[27] (1857) 9 Hare 387

[28] Supra note 22, at p 817

[29]Lords Davey and Shand, with whom the other Lords agreed, after examination of the evidence in the case have held that ‘since it was not established that these documents were prepared and executed for evasion of duty’ the request ‘for disclosure cannot be permitted’.

[30] Lord Halsbury, wrote separate but concurrent opinion.  Also Ref. R V. Molly (deceased) 1997

[31] Lord Brampton simply agreed with other Lords.

[32] This is a more practical and pragmatic reason for lifting the privilege after the death of the client, at least in helping another accused in his defense, since the prosecution against the deceased-client is closed subject to few exceptions given in Sec 394 of The Code of Criminal Procedure, 1973 permitting ‘the legal heirs to continue the case only when an appeal is pending in the Appellant Court’.

[33] The proposed exception in the present case is different from the two exceptions since ‘in those two situations clients know up front with certainty that the statements they make are unprotected by the privilege.’

[34] (1995) 4 All ER 530

[35] But, in the end Lord Lloyd too held that ‘balancing exercise is not required’ in the present case.

[36] Refer for instance to the decision in D V. National Society for the Prevention of Cruelty to Children (1977) 1 All ER 589 on the doctrine of Public Interest Immunity.

[37] In India, ‘public interest immunity’ as ‘the reason for refusing to disclose the contents of any document forming part of the un-pulished records relating to the Affairs of State in evidence in The Court’ can be found in Secs. 123 and 124 of 1872 Act.  See ‘the legal controversy generated ‘when a request for disclosure’ of the contents of a letter written by (Late) Sri K.R. Narayanan, former President of India to Sri Atal Behari Vajpayee former Prime Minister of India before the Lords Nanavati and Lord K.T. Shah Commission of Inquiry was turned down by Government of India’.

[38] The main opinion was given by Lord Taylor.

[39] However in the end, Lord Lloyd also observed that ‘balancing exercise’ may not be necessary in the present case.

[40] In India, we can find only two ‘Statutory Exceptions to the privilege’ in Sec.126 of 1872 Act. They are (1) ‘any such communication made in furtherance of any illegal purpose’ (2) ‘any fact observed by any Barrister, Pleader, Attorney or Vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment.’  

[41]  AIR 1954 Rajasthan 741, at p 752, p 26

 
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