• Key point. It is likely that the clergy—penitent privilege survives the death of the penitent.
The United States Supreme Court has issued an opinion suggesting that the clergy—penitent privilege may survive a minister's death. While the case involved the attorney—client privilege, the court's reasoning applies equally to the clergy—penitent privilege. The case involved several pages of notes taken by an attorney during a meeting with Deputy White House Counsel Vince Foster. Following Foster's suicide, an independent counsel subpoenaed the attorney's notes. The attorney refused to turn over his notes, claiming that they were protected from disclosure by the attorney—client privilege. The independent counsel insisted that the privilege no longer applied after the client's death. A federal appeals court ruled in favor of the independent counsel, and the case was appealed to the Supreme Court, which concluded that the attorney—client privilege survives the death of the client. The court observed: "[W]e think there are weighty reasons that counsel in favor of posthumous application. 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." The court added that the privilege survives the life of a client even in noncriminal matters: