Supreme Court may test theory of lawyer privilege Justices may decide if a client's privacy extends beyond grave; Starr seeks Foster notes


WASHINGTON -- The legal troubles of President Clinton and Hillary Rodham Clinton are reaching the Supreme Court with a speed most unusual for high-stakes disputes -- and more cases could be on the way.

For the third time in a year, the justices are being drawn into the controversies over the pursuit of the Clintons by investigators and other legal adversaries.

The justices could decide this week whether to hear the latest dispute -- a fight over notes made by a lawyer during a private conversation with Vincent W. Foster Jr. The White House deputy counsel committed suicide nine days later.

Independent counsel Kenneth W. Starr insists that he needs the notes, despite the customary privacy accorded lawyer-client conversations, for his investigation into whether Hillary Clinton lied about her role in the firing of White House travel aides five years ago.

The Clinton administration says such communications are privileged and, thus, secret -- even though Foster, the client, is dead.

This dispute arrives at the court in a markedly different atmosphere. The president is under heavy legal siege, due in part, his lawyers believe, to the Supreme Court's decision last May to allow the Paula Corbin Jones' sexual misconduct lawsuit to go forward while he is in office.

It is unclear whether Clinton's difficulties now will make the court more sympathetic. When the justices allowed the Jones case to proceed, they appeared to have no notion that it would explode into the pervasive sex scandal now menacing Clinton's presidency.

The Clinton administration has made frequent claims of privacy or "legal privilege" when faced with demands for information in lawsuits, criminal investigations or congressional probes. "Since the Nixon scandals, no president has used presidential privileges more than Bill Clinton has," says Mark J. Rozell, a political science professor at American University.

The law recognizes such privileges to protect the president's privacy or legal immunity. Clinton or the first lady have claimed three: lawyer-client confidentiality, secrecy of presidential talks with aides and immunity to lawsuits while in office.

White House counsel Charles F. C. Ruff insists: "As members of the legal profession, as well as public servants, we have not advanced, and would not advance, any argument that we did not believe was both meritorious and consistent with that responsibility."

Ruff rejects accusations that "the president has advanced frivolous legal claims in order to delay any civil or criminal litigation."

While he was not prepared to say that the Clinton administration had "abused" such claims, Rozell said "they have very weak claims of privilege."

George Washington University law professor Jonathan Turley is even more critical. Ticking off the names of various investigations surrounding the Clintons, Turley said: "From Whitewater to Travelgate to Filegate to the Jones case to the Monica Lewinsky scandal, this administration has asserted extreme interpretations of executive privilege and attorney-client privilege."

The presidency as an institution, he said, may be losing out in the governmental balance of power as Clinton makes and loses more privilege claims.

White House counsel Ruff counters that his office has an obligation to protect the constitutionally-based interests of the executive branch. The Clinton administration's next privilege claim to reach the high court could involve claims of executive privilege to protect the confidentiality of internal White House discussions.

That dispute was being played out behind closed doors in the federal courthouse in Washington last week as Starr's grand jury sought to question top White House aides about conversations they had with Clinton about sexual misconduct allegations.

U.S. District Judge Norma Holloway Johnson, who oversees the grand jury, was faced with a formal claim of executive privilege by the president for those conversations. If the sides do not compromise and Johnson is forced to rule, the dispute could move quickly to the Supreme Court.

In the case now before the Supreme Court, involving three pages of notes on Foster's talk with a private attorney, the claimed privilege is attorney-client confidentiality.

Washington attorney James Hamilton wants the court to shield his notes on the theory that Foster's privacy as a client survives his death. The federal appeals court in Washington, in a ruling last summer that has sent a shudder through the legal community, found that the needs of Starr's criminal investigation outweigh the privacy claim.

That decision, Hamilton and his law firm argue in an appeal, "denies persons who expect to die soon -- whether because of advanced age, illness, suicide or a dangerous lifestyle -- the right to consult attorneys in confidence about criminal matters that might threaten friends, associates, family or their own reputations."

Although the Foster case tests attorney-client privacy only after the client's death, it could have broader implications because lawyers have long assumed that the privilege of confidentiality is all but absolute, extending beyond death -- unless the client lifts the veil of secrecy.

Attorney-client secrecy is based on the oldest of the privileges of confidentiality recognized in the law. The doctrine dates to the late-16th century, in Elizabethan England, and has been a fixture in U.S. law since the 1820s.

Its importance to lawyers is reflected by the fact that Hamilton's appeal to the Supreme Court has drawn the support of the American Bar Association and two other legal groups. Its specific importance to dying clients shows in the support from the American Hospice Association.

If the court agrees to hear the case, Starr has contended it would slow his investigation.

This is the second time an attorney-client secrecy case affecting the Clintons has gone to the court. In June, the justices refused without comment to consider a claim of that privilege by the White House. Starr had demanded notes of meetings between Hillary Clinton and White House lawyers to discuss the handling of documents found in Foster's office after his suicide in July 1993. When the court declined to hear the case, the notes were handed over.

In the Paula Jones case, Clinton had asserted a privilege of presidential immunity to civil lawsuits while in office. The Supreme Court unanimously rejected the claim, expressing doubt that the case would become a serious impediment to the president's ability to do his work.

Robert S. Bennett, the president's private lawyer in the Jones case, has said that the broadening sexual misconduct allegations against Clinton show "that the higher court's confidence that this case could proceed without undue distraction to the nation's business was unfounded."

Pub Date: 3/23/98

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