Editorial: Valid concerns of chilling effect

Wednesday, June 10, 1998 | 9:59 a.m.

On Monday the court heard oral arguments in which the lawyer for Vincent Foster asked the court to keep secret his notes of a final meeting with the late White House aide. To release these notes and other papers would harm the sanctity of the attorney-client privilege and could have a chilling effect on openness between a lawyer and his client, according to Foster's attorney, James Hamilton. But a prosecutor from the Whitewater independent counsel's office countered that once a client dies, the privilege dies with that person.

A high hurdle must be met before modifying in any way the attorney-client privilege. An example that would be a reasonable exception to this privilege, which Justice Sandra Day O'Connor pointed out, is the circumstance of someone else's life being in danger. For instance, if someone is facing a murder trial but a deceased client had already confessed to the murder, it would seem reasonable that an attorney could divulge this information to save the life of another.

But the independent counsel is on a fishing expedition; the Foster case does not come close to meriting an exception to this special trust that exists between an attorney and his client. There is every reason to believe that compelling Foster's attorney to turn over his notes would have a chilling effect on future discussions between clients and their attorneys.

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