The issue of whether the attorney client privilege survives the death of a client was discussed in class. The following provides us with an answer to this question:
"Despite the scholarly criticism, we 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 a feared as disclosure during the client's
lifetime." Swidler & Berlin v. United States, 524 U.S. 399 (1998)
Prior to the 1998 Supreme Court decision a majority of courts but not all recognized that the attorney client privilege did survive the death of a client. Should the privilege survive?
