402
Opinion of the Court
handwritten notes. One of the first entries in the notes is the word "Privileged." Nine days later, Foster committed suicide.
In December 1995, a federal grand jury, at the request of the Independent Counsel, issued subpoenas to petitioners Hamilton and Swidler & Berlin for, inter alia, Hamilton's handwritten notes of his meeting with Foster. 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, after examining the notes in camera, concluded they were protected from disclosure by both doctrines and denied enforcement of the subpoenas.
The Court of Appeals for the District of Columbia Circuit reversed. In re Sealed Case, 124 F. 3d 230 (1997). While recognizing that most courts assume the privilege survives death, the Court of Appeals noted that holdings actually manifesting the posthumous force of the privilege are rare. Instead, most judicial references to the privilege's posthumous application occur in the context of a well-recognized exception allowing disclosure for disputes among the client's heirs. Id., at 231-232. It further noted that most commentators support some measure of posthumous curtailment of the privilege. Id., at 232. The Court of Appeals thought that the risk of posthumous revelation, when confined to the criminal context, would have little to no chilling effect on client communication, but that the costs of protecting communications after death were high. It therefore concluded that the privilege was not absolute in such circumstances, and that instead, a balancing test should apply. Id., at 233- 234. It thus held that there is a posthumous exception to the privilege for communications whose relative importance to particular criminal litigation is substantial. Id., at 235. While acknowledging that uncertain privileges are disfavored, Jaffee v. Redmond, 518 U. S. 1, 17-18 (1996), the Court of Appeals determined that the uncertainty introduced by its balancing test was insignificant in light of existing excep-
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