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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. 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.
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