The Counsellor's Corner

The United States Supreme Court rendered a number of critical decisions in June, none of which was more important than the 6 to 3 ruling which held that the attorney-client privilege survives the death of the client. Those who are arguing against the privilege talked about how useful destroying it would be. If someone knew about a murder and talked to his lawyer about it; as soon as that individual died, the lawyer could then speak out.

I see this issue exactly the opposite way. My concern is that this is a great way to screw things up for someone you don't like. Tell your lawyer that someone who is your hated enemy killed somebody, give him some details, and as soon as you die, that person may well find himself investigated, indicted and in trial facing the death penalty. Even in a non-capital case it would be easy to make the life of someone who you did not care for very difficult by accusing him of rape, embezzlement, conspiracy; there are all sorts of charges that can be made and as soon as the person who hints he has a story to tell dies, the media will be beating a path to the door of the attorney of the deceased, and the paparazzi will be surrounding the attorney wanting pictures. As people with "secrets" die, new attorneys will become instant celebrities. Can you imagine if Frank Sinatra's attorney were subpoenaed and ordered to tell what Frank knew.

In the political arena this would be even more damaging as political enemies would have surefire means for revenge. The person may not end up being convicted, however merely being charged and having to hire an attorney and pay costly attorneys fees would be a tremendous blow.

It is important that someone knows that when they come to speak to an attorney, everything they say is going to stay within those four walls. What that does is allow the client to have at least one person in the world with whom he knows he can speak freely and candidly and not risk getting burned. It is very important to have someone one can talk to with that kind of protection, and throughout the history of this country people have known that they have this right.

The case that led to this decision involved Vince Foster, the late Deputy White House Attorney who committed suicide (unless you believe the conspiracy theorists) during President Clinton's first administration. Prosecutor (I don't believe he's independent) Ken Starr wanted notes from Mr. Foster's conversations with his attorneys before Mr. Foster died.

It is interesting to note that the nine Supreme Court justices, who tend to divide into groups of three; one with liberal leanings, one with conservative leanings, and one which tends to provide the swing votes did not stay within their groupings in this case.

The opinion was delivered by Chief Justice Rehnquist, who was joined by the three most liberal judges and two of the three swing vote justices. Justice Rehnquist concluded that both history and precedent were against Ken Starr. As Justice Rehnquist put it: "Clients consult with attorneys for a wide variety of reasons, only one of which involves possible criminal liability. Many attorneys act as counselors on personal and family matters, where in the course of obtaining the desired advice, confidences about family members who have financial problems must be revealed in order to assure sound legal advice."

This ruling is especially important for the elderly who might have had to think twice before consulting an attorney knowing that what they say might become public knowledge in a relatively short period of time.

So there you have it, an absolutely critical Supreme Court decision decided in such a way as to preserve attorney-client confidentiality, an extraordinarily important right and a blow to an increasingly arrogant Ken Starr. If Starr wants to take down the President, that's one thing, but when he goes after longstanding Constitutional protections, that's another.

Charlie Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Booth & Unger, and a therapist at the Foothill Centre for Personal and Family Growth. Mr. Unger writes a bimonthly column on legal and psychological issues.