406
Opinion of the Court
ent Counsel to show that "reason and experience" require a departure from this rule.
The Independent Counsel contends that the testamentary exception supports the posthumous termination of the privilege because in practice most cases have refused to apply the privilege posthumously. He further argues that the exception reflects a policy judgment that the interest in settling estates outweighs any posthumous interest in confidentiality. He then reasons by analogy that in criminal proceedings, the interest in determining whether a crime has been committed should trump client confidentiality, particularly since the financial interests of the estate are not at stake.
But the Independent Counsel's interpretation simply does not square with the case law's implicit acceptance of the privilege's survival and with the treatment of testamentary disclosure as an "exception" or an implied "waiver." And the premise of his analogy is incorrect, since cases consistently recognize that the rationale for the testamentary exception is that it furthers the client's intent, see, e. g., Glover, supra. There is no reason to suppose as a general matter that grand jury testimony about confidential communications furthers the client's intent.
Commentators on the law also recognize that the general rule is that the attorney-client privilege continues after death. See, e. g., 8 Wigmore, Evidence § 2323 (McNaughton rev. 1961); Frankel, The Attorney-Client Privilege After the Death of the Client, 6 Geo. J. Legal Ethics 45, 78-79 (1992); 1 J. Strong, McCormick on Evidence § 94, p. 348 (4th ed. 1992). Undoubtedly, as the Independent Counsel emphasizes, various commentators have criticized this rule, urging that the privilege should be abrogated after the client's death where extreme injustice would result, as long as disclosure would not seriously undermine the privilege by deterring client communication. See, e. g., C. Mueller & L. Kirkpatrick, 2 Federal Evidence § 199, pp. 380-381 (2d ed. 1994); Restatement (Third) of the Law Governing Lawyers § 127, Comment
Page: Index Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 NextLast modified: October 4, 2007