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Pastor, Church & LawMember access only

by Richard R. Hammar, J.D., LL.M., CPA

Death of the Counselee

§ 3.08.12
Key point 3-08.12. The clergy-penitent privilege may continue to protect communications made to a minister even after the counselee's death.

The United States Supreme Court issued an opinion in 1998 suggesting that the clergy-penitent privilege may survive a counselee's death. [159] Swidler & Berlin v. United States, 118 S. Ct. 2081 (1998). 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 President Clinton's 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. ...

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