412
OTMConnor, J., dissenting
States, 445 U. S. 40, 50 (1980) (internal quotation marks omitted).
The attorney-client privilege promotes trust in the representational relationship, thereby facilitating the provision of legal services and ultimately the administration of justice. See Upjohn Co. v. United States, 449 U. S. 383, 389 (1981). The systemic benefits of the privilege are commonly understood to outweigh the harm caused by excluding critical evidence. A privilege should operate, however, only where "necessary to achieve its purpose," see Fisher v. United States, 425 U. S. 391, 403 (1976), and an invocation of the attorney-client privilege should not go unexamined "when it is shown that the interests of the administration of justice can only be frustrated by [its] exercise," Cohen v. Jenkin-town Cab Co., 238 Pa. Super. 456, 464, 357 A. 2d 689, 693- 694 (1976).
I agree that a deceased client may retain a personal, reputational, and economic interest in confidentiality. See ante, at 407. But, after death, the potential that disclosure will harm the client's interests has been greatly diminished, and the risk that the client will be held criminally liable has abated altogether. Thus, some commentators suggest that terminating the privilege upon the client's death "could not to any substantial degree lessen the encouragement for free disclosure which is [its] purpose." 1 J. Strong, McCormick on Evidence § 94, p. 350 (4th ed. 1992); see also Restatement (Third) of the Law Governing Lawyers § 127, Comment d (Proposed Final Draft No. 1, Mar. 29, 1996). This diminished risk is coupled with a heightened urgency for discovery of a deceased client's communications in the criminal context. The privilege does not "protect disclosure of the underlying facts by those who communicated with the attorney," Up-john, supra, at 395, and were the client living, prosecutors could grant immunity and compel the relevant testimony. After a client's death, however, if the privilege precludes an attorney from testifying in the client's stead, a complete
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