Pace, FL Criminal Defense Law Firms & Lawyers

The attorney-client privilege, like other privileges, goes back to common law. Generally, it means that when a person (client) seeks legal advice from a lawyer, communications he or she makes to the lawyer in confidence are permanently protected from disclosure unless the client agrees to waive the privilege. The Supreme Court has said the privilege is intended to encourage "full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice." There is a general presumption in criminal cases that the privilege survives the death of the client. It is not absolute, and there has been criticism of it. In 1998, the Government argued to the Supreme Court that the attorney-client privilege should not prevent disclosure of confidential communications where the client has died and the information is relevant to a criminal proceeding. The Supreme Court disagreed. "Knowing that communications will remain confidential even after death encourages the client to communicate fully and frankly with counsel. While the fear of disclosure, and the consequent withholding of information from counsel, may be reduced if disclosure is limited to posthumous disclosure in a criminal context, it seems unreasonable to assume that it vanishes altogether. Clients may be concerned about reputation, civil liability, or possible harm to friends or family. Posthumous disclosure of such communications may be as feared as disclosure during the client's lifetime." But, in that case, three justices dissented and would have ruled differently, and majority opinion states that it was not addressing whether there might be exceptional circumstances that could justify breaching the privilege after death. For more information, I would look at some law review articles on the subject, or the Supreme Court case I quoted above, which is Swidler & Berlin v. United States, 118 S. Ct. 2081, 2084 (U.S., 1998).