Cite as: 524 U. S. 399 (1998)
OTMConnor, J., dissenting
edges that most cases merely "presume the privilege survives," see ante, at 404, and it relies on the case law's "implicit acceptance" of a continuous privilege, see ante, at 406. Opinions squarely addressing the posthumous force of the privilege "are relatively rare." See 124 F. 3d, at 232. And even in those decisions expressly holding that the privilege continues after the death of the client, courts do not typically engage in detailed reasoning, but rather conclude that the cases construing the testamentary exception imply survival of the privilege. See, e. g., Glover, supra, at 406-408; see also Wright & Graham, supra, § 5498, at 484 ("Those who favor an eternal duration for the privilege seldom do much by way of justifying this in terms of policy").
Moreover, as the Court concedes, see ante, at 403-404, 406-407, there is some authority for the proposition that a deceased client's communications may be revealed, even in circumstances outside of the testamentary context. California's Evidence Code, for example, provides that the attorney-client privilege continues only until the deceased client's estate is finally distributed, noting that "there is little reason to preserve secrecy at the expense of excluding relevant evidence after the estate is wound up and the representative is discharged." Cal. Evid. Code Ann. § 954, and comment, p. 232, § 952 (West 1995). And a state appellate court has admitted an attorney's testimony concerning a deceased client's communications after "balanc[ing] the necessity for revealing the substance of the [attorney-client conversation] against the unlikelihood of any cognizable injury to the rights, interests, estate or memory of [the client]." See Cohen, supra, at 464, 357 A. 2d, at 693. The American Law Institute, moreover, has recently recommended withholding the privilege when the communication "bears on a litigated issue of pivotal significance" and has suggested that courts "balance the interest in confidentiality against any exceptional need for the communication." Restatement (Third) of the Law Governing Lawyers § 127, at 431, Com-
415
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