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Swidler & Berlin v. United States

United States Supreme Court
524 U.S. 399 (1998)



In 1993, the Office of Independent Counsel began an investigation into whether there were any improprieties in the firing of several White House travel employees. Vincent Foster, deputy White House counsel, met with James Hamilton, an attorney with Swidler & Berlin (defendant), to seek legal advice with regard to the investigation. Hamilton took three pages of notes at their meeting. One of the first entries in the notes is the word “Privileged”. Nine days after the meeting, Foster committed suicide. A federal grand jury then issued subpoenas to Swidler & Berlin for, inter alia, Hamilton’s notes. Swidler & Berlin filed a motion to quash on the grounds that the notes were protected by the attorney-client privilege. The district court denied enforcement of the subpoenas. The Court of Appeals for the District of Columbia Circuit reversed. It found that there is a posthumous exception to the privilege for attorney-client communications of which the relative importance to criminal litigation is substantial. Swidler & Berlin petitioned for certiorari to the Supreme Court.

Rule of Law


Holding and Reasoning (Rehnquist, J.)

Dissent (O’Connor, J.)

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