Urging the Supreme Court not to abandon a key legal protection, the lawyer for the late Vincent Foster argued Monday he should be allowed to keep secret his notes of conversations with his client. Whitewater prosecutors argued the notes could prove vital to their investigation.
At issue is whether a client's legal right to keep his conversations with a lawyer confidential extends to the grave. Foster, a White House deputy counsel and close friend of the first family, committed suicide in July 1993.James Hamilton, who represented Foster until his death, said any decision forcing him to turn over the notes "would have a strong chilling effect in client candor."
"People do care about their reputations and family and friends," he told the justices in arguing that the attorney-client privilege must extend beyond death.
An appeals court has already ruled that Hamilton should be forced to turn over the notes, saying the notes' "relative importance" to the criminal investigation into the 1993 White House travel office firings outweighed the privilege.
But Brett Kavanaugh, an associate of Independent Counsel Kenneth Starr, asked the justices to go even further and conclude that the attorney-client privilege should not extend beyond a client's death.
At one point, Justice Ruth Bader Ginsburg asked the prosecutor whether investigators' interests could extend beyond the notes to actually questioning Hamilton about what he learned from his client. Kavanaugh replied, "Absolutely."
Nine days before his death, Foster spoke confidentially to Hamilton about the White House travel office firings in which Foster, a former law partner of first lady Hillary Rodham Clinton, played a role.
The three pages of notes that lawyer Hamilton took during that conversation with Foster are the focus of the dispute.
"This novel ruling" by the appeals court "has the potential to affect attorney-client relationships nationwide and to impair the goals of the ethical principles that require attorneys to protect client confidences," the American Bar Association said in papers filed with the Supreme Court.
Foster spoke with Hamilton for two hours on July 11, 1993, to discuss possible legal representation "in the midst of intense public controversy" about the travel office firings, Hamilton said. Foster asked Hamilton if the conversation was privileged and was assured that it was.
Foster was found dead of a single gunshot wound to the head on July 20, 1993.