WASHINGTON -- Independent counsel Kenneth W. Starr appeared yesterday to be in danger of losing his bid in the Supreme Court to obtain notes of what the late deputy White House counsel Vincent W. Foster Jr. told his lawyer about a scandal still swirling around Hillary Rodham Clinton.
In a hearing on a closely watched case about attorney-client secrecy, most of the justices spoke critically of Starr's demand for three pages of notes that Foster's attorney took at a 1993 meeting with Foster. Nine days after that conversation with his lawyer, James Hamilton, Foster killed himself, apparently distraught over the controversies enveloping the Clintons.
The issue the court is facing is whether the attorney-client privilege that normally protects the confidentiality of a lawyer's conversations with a client continues after the client's death, when criminal prosecutors want to find out what was said.
If the court's ruling, likely by the end of this month, follows the hints that emerged at yesterday's hearing, it could blunt Starr's effort to fully explore the 1993 firing of White House travel office aides -- an incident in which the first lady was accused of playing some role. She has denied that she did.
White House officials were accused of firing seven career travel office employees and of inciting an FBI investigation in order to replace them with Arkansas associates. The White House later apologized and reinstated most of the employees.
Foster had approached Hamilton for legal advice about the travel office matter. Hamilton told the justices yesterday that, at the beginning of the conversation, Foster asked if the conversation was confidential. "Without hesitation, I said it was," Hamilton recalled.
Eight justices asked questions during the hearing -- a special session held weeks after the court would ordinarily finish public arguments. Only one of the eight, Antonin Scalia, seemed strongly supportive of Starr's plea to put Hamilton's notes before a grand jury that is investigating possible crimes in the travel office firings.
Among the other justices, Anthony M. Kennedy at one point told one of Starr's associate counsels, Brett M. Kavanaugh: "The legal profession might be a little poorer if we adopt the principle you suggest."
Justice Ruth Bader Ginsburg chastised Kavanaugh -- and Starr -- for seeking notes that, she said, they would have no legal authority to obtain had Foster remained alive.
Chief Justice William H. Rehnquist suggested that Starr's position "overlooks" and "understates" the fact that clients must feel free to speak candidly with their lawyers in order to obtain "good legal advice."
In arguing for keeping the notes out of Starr's reach, Hamilton was relying on the centuries-old legal principle of confidentiality. Hamilton said that a ruling against the privilege in this case would have a "chilling effect" on conversations between countless dying individuals and their lawyers.
"People do care about their reputations and their family and friends after their deaths," the attorney said. Under many states' laws and court decisions, he said, the privilege of confidentiality survives the client's death. That view, however, was rejected by a federal appeals court last summer.
Scalia noted that there remain "conspiracy theorists" speculating about how Foster died. Scalia asked Hamilton, hypothetically, whether Starr could gain access to Hamilton's notes if the prosecutor were looking into whether Foster's wife had killed him. Hamilton said he would still be opposed to disclosing the notes.
The lawyer noted that Starr was trying to obtain the notes not to "exonerate" anybody but to determine whether to prosecute someone for crimes. The privilege of confidentiality, Hamilton said, "will be of little value" if lawyers must yield each time a grand jury wants to investigate what the lawyers discussed with their clients.
Though Hamilton was questioned aggressively by Scalia, and drew some skeptical questioning from Kennedy, his reception overall was far less hostile than Kavanaugh's.
After Kavanaugh had spoken, Kennedy became an apparent adversary, telling the Starr aide that lawyers might have to face civil damage lawsuits, and perhaps even some personal threat, if they could not keep secret what their clients had said to them.
O'Connor told Starr's associate that his position "does not have a lot of support" in lower-court rulings. Rehnquist complained that "there is a woeful dearth of research in the legal profession" about how lawyers and clients would react if they knew that their conversations would not remain confidential.
Rehnquist suggested that the court would be in a better position to decide the dispute if some poll of lawyers had been conducted. Kavanaugh, he said, was relying on what was written in a few law review articles when he argued that no privilege of confidentiality should apply when a grand jury wants to know what a client said.
Breyer suggested that there have been few cases in which lawyers have been forced to reveal their clients' confidences. Because "everybody thinks those conversations are privileged," Breyer said, prosecutors have not tried to obtain the information, as Starr is now trying to do.
And, Breyer added, "clients all think they're safe" when they talk to their lawyers, and that's why the issue seldom arises.
Pub Date: 6/09/98