A number of issues that are of concern to members of the legal profession remain obtuse and arcane to the general public. One such area of interest to attorneys, often misunderstood by the public, is the attorney-client privilege. This privilege is more limited than a lawyer’s ethical obligation to guard clients’ confidences and secrets under Rule 1.6 of the Minnesota Rules of Professional Conduct.^Ftn 1 While the obligation under 1.6 exists regardless of the source of the information obtained or the fact that others are aware of the confidences, the evidentiary privilege differs in those respects. Thus, as it regards the evidentiary privilege, a lawyer must advise his client of the privilege, avoid waiving it inadvertently, and assert the privilege in a timely manner. The use of the evidentiary privilege keeps information confidential that may be relevant in the resolution of a pending matter, and therein lies the controversy. Recently, two high-profile cases have put the issue of attorney-client privilege at the forefront of a debate about American jurisprudence.

In Swidler and Berlin v. United States^,Ftn 2 the United States Supreme Court addressed the issue of whether a grand jury was entitled to examine notes that a private attorney took in a meeting with the late deputy White House counsel, Vincent Foster, nine days before Foster’s suicide.

In oral arguments conducted on June 8, 1998, the issue before the Court was whether a balancing test, approved by the U.S. Court of Appeals for the D.C. Circuit, was appropriate in deciding whether a lawyer’s communications with a now-deceased client should be disclosed. Under the proposed test, the statements would be discoverable if their "relative importance is substantial," the statements "bear on a significant aspect of the crimes at issue" and the issue is one "as to which there is a scarcity of reliable evidence."^Ftn 3 At the time the case came before the Court, one of the few reported cases had been decided by a state court and had held that the client’s death did not affect the validity of the privilege. But most legal commentators conceded and the American Law Institute’s Restatement of the Law Governing Lawyers stated that the privilege should not always survive the client.^Ftn 4

Justice Kennedy suggested at oral argument that the legal profession "would be poorer" if an attorney could not assure clients that information disclosed confidentially would be protected after the client’s death.^Ftn 5 Many lawyers would agree and after Chief Justice Rehnquist noted that there was little "empirical research in the legal profession" about this topic and suggested that if lawyers and prosecutors were polled, the Court would "have a much better idea of how to decide the case," a poll was conducted by the National Law Journal with "only 17 percent supporting the position taken by Independent Counsel Kenneth W. Starr that the privilege ends with death."^Ftn 6

The Court also refused to support the balancing approach, used by the lower court, that would have allowed the privilege to be breached if the communications were of substantial importance to a criminal matter. While one commentator declared the decision "a complete victory for the legal profession and the clients we represent,"^Ftn 7 another noted that the ruling "promised to have far-reaching consequences for the legal profession--from the White House counsel’s office to single shingle practices throughout the USA."^Ftn 8 A "legal ethics specialist" went further, describing "the ruling [as] a huge, and arguably unfair, boost for the profession. It means lawyers are uniquely available for the most confidential of conversations."^Ftn 9

The solution adopted by the tobacco companies was to have their "scientific" research conducted under the close consultation, and sometimes under the management, of their lawyers. The idea was that bad findings could be held back as lawyer-client confidences, whereas good findings could be described as the product of scientific inquiry.^Ftn 10

In this area, timing is a major consideration. Suppressing research or destroying documents prior to any lawsuit request certainly raises moral issues but not always ethical concerns. On the other hand, the Rules of Professional Conduct clearly prohibit lawyers from aiding clients in making false statements or participating in the creation of false evidence. Finally, failing to turn over documents, or destroying them when subject to a court order, is far more than an ethical violation; such conduct may well constitute obstruction of justice in violation of the criminal code.^Ftn 11

For over three decades, the parade of lawyers involved in this abuse of the attorney-client privilege came from some of the most well-known law firms in the nation. Perhaps their behavior serves to remind us that when the stakes are high, the clients powerful, and the fees huge, some of our best lawyers fail to meet the test, folding under the weight of expediency and self-interest. As one commentator noted, "It seems not unfair to characterize the activity as assisting in fraud on the public . . . all of us in the legal profession will pay the price."^Ftn 12