414
OTMConnor, J., dissenting
should be permitted to assess whether interests in fairness and accuracy outweigh the justifications for the privilege.
A number of exceptions to the privilege already qualify its protections, and an attorney "who tells his client that the expected communications are absolutely and forever privileged is oversimplifying a bit." 124 F. 3d, at 235. In the situation where the posthumous privilege most frequently arises—a dispute between heirs over the decedent's will— the privilege is widely recognized to give way to the interest in settling the estate. See Glover v. Patten, 165 U. S. 394, 406-408 (1897). This testamentary exception, moreover, may be invoked in some cases where the decedent would not have chosen to waive the privilege. For example, "a decedent might want to provide for an illegitimate child but at the same time much prefer that the relationship go undis-closed." 124 F. 3d, at 234. Among the Court's rationales for a broad construction of the posthumous privilege is its assertion that "[m]any attorneys act as counselors on personal and family matters, where, in the course of obtaining the desired advice, confidences about family members or financial problems must be revealed . . . which the client would not wish divulged." Ante, at 407-408. That reasoning, however, would apply in the testamentary context with equal force. Nor are other existing exceptions to the privilege—for example, the crime-fraud exception or the exceptions for claims relating to attorney competence or compensation—necessarily consistent with "encouraging full and frank communication" or "protecting the client's interests." Ante, at 410. Rather, those exceptions reflect the understanding that, in certain circumstances, the privilege " 'ceases to operate' " as a safeguard on "the proper functioning of our adversary system." See United States v. Zolin, 491 U. S. 554, 562-563 (1989).
Finally, the common law authority for the proposition that the privilege remains absolute after the client's death is not a monolithic body of precedent. Indeed, the Court acknowl-
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