Recent Developments in the Supreme Court Regarding Confidential and Privileged Communications

The United States Supreme Court has issued an opinion suggesting that the clergy-penitent privilege may survive a minister’s death.

Church Law and Tax1998-11-01

Confidential and privileged communications

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:

Clients consult 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 or financial problems must be revealed in order to assure sound legal advice. The same is true of owners of small businesses who may regularly consult their attorneys about a variety of problems arising in the course of the business. These confidences may not come close to any sort of admission of criminal wrongdoing, but nonetheless be matters which the client would not wish divulged.

Application. Does the clergy—penitent privilege survive the penitent’s death? This case suggests that the answer is “yes”. Like clients who seek out attorneys for legal advice, persons who confide in ministers often are induced to do so because of the recognition that information they share in confidence cannot be disclosed in court. The Supreme Court concluded that this policy would be undermined if clients were not assured that the privilege survives their death. Obviously, the same rationale applies to the clergy—penitent privilege. This is an important case for clergy to remember when they are asked to testify in a deposition or trial concerning information shared with them in a confidential counseling session by a person who is now deceased. It is likely that a court will conclude, on the basis of the Supreme Court’s recent decision, that the clergy—penitent privilege survives the counselee’s death. Swidler & Berlin v. United States, 118 S. Ct. 2081 (1998). The Clergy-Penitent Privilege

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