United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
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Filed November 21, 1997
No. 97-3006
In re: Sealed Case
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Consolidated with
No. 97-3007
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Appeals from the United States District Court
for the District of Columbia
(No. 95ms00446; No. 95ms00447)
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BEFORE: Edwards, Chief Judge; Wald, Silberman,
Williams, Ginsburg, Sentelle, Henderson, Randolph,
Rogers, Tatel and Garland, Circuit Judges.
On Appellees' Suggestion
for Rehearing In Banc
O R D E R
Appellees' Suggestion for Rehearing In Banc and the
response thereto have been circulated to the full court. The
taking of a vote was requested. Thereafter, a majority of the
judges of the court in regular active service did not vote in
favor of the suggestion. Upon consideration of the foregoing,
it is
ORDERED that the suggestion be denied.
A statement of Circuit Judge Tatel dissenting from the
denial of rehearing in banc, in which Circuit Judge Ginsburg
joins with respect to the issue of attorney-client privilege, is
attached.
Circuit Judges Sentelle and Garland did not participate
in this matter.
Tatel, Circuit Judge, with whom Ginsburg, Circuit Judge,
joins with respect to the issue of attorney-client privilege,
dissenting from the denial of rehearing in banc: Dramatically
departing from the common law rule that protects the attor-
ney-client privilege after a client's death, and threatening the
vitality of that privilege, this case raises issues of exceptional
importance worthy of in banc consideration. See Fed. R. App.
P. 35(a)(2). The case especially warrants in banc review
because the consequences of the court's new balancing test
will extend far beyond federal criminal cases in the District of
Columbia. Clients involved in civil or criminal proceedings
anywhere in the country have no way of knowing whether
information they share with their lawyers might someday
become relevant to a federal criminal investigation in Wash-
ington, D.C. As the Supreme Court noted regarding the
psychotherapist privilege, "any State's promise of confiden-
tiality would have little value if the patient were aware that
the privilege would not be honored in a federal court." Jaffee
v. Redmond, 116 S. Ct. 1923, 1930 (1996).
As I pointed out in my dissent, the common law rule has
been incorporated in the Uniform Rules of Evidence and the
Model Code of Evidence, adopted by the Supreme Court's
Advisory Committee, and codified by at least twenty state
legislatures. In re Sealed Case, 124 F.3d 230, 238 (D.C. Cir.
1997) (Tatel, J., dissenting). The Independent Counsel cites
two cases that have abrogated the privilege after a client's
death, but neither is relevant here. In both State v. Gause,
489 P.2d 830 (Ariz. 1971), and State v. Kump, 301 P.2d 808
(Wyo. 1956), courts held that an accused husband could not
invoke the privilege on behalf of his dead wife to bar his
wife's lawyer from testifying, a situation quite different from
this case where the attorney himself has invoked the privilege
on behalf of his deceased client. As the court in Gause said,
"the privilege is that of the client and must be claimed by the
client or someone authorized by law to do so on the client's
behalf." Gause, 489 P.2d at 834. Until this court's decision,
only one reported case--a never-cited opinion of a mid-level
Pennsylvania appellate court--actually supported posthumous
abrogation of the privilege when asserted by the lawyer in a
nontestamentary dispute. Cohen v. Jenkintown Cab Co., 357
A.2d 689 (Pa. Super. Ct. 1976).
According to the Independent Counsel, empirical support
is "nonexistent" for the proposition that abrogating the
attorney-client privilege after the client's death will chill
client communication. Opposition of the United States to
Appellees' Petition for Rehearing With Suggestion for Re-
hearing In Banc at 12. But because the Independent Counsel
himself urges overturning the common law rule, and because
that rule rests on the proposition that preserving the attor-
ney-client privilege after the client's death is necessary to
promote client disclosure, the Independent Counsel bears the
responsibility of producing evidence to the contrary. In place
of such evidence, he offers only his opinion that "any hypothe-
sized chilling effect would be minimal," id., citing only this
court's opinion that it "expect[s]" its balancing test's "chilling
effect to fall somewhere between modest and nil," Sealed
Case, 124 F.3d at 233. Without convincing evidence that
abrogating the privilege will do no harm to client communica-
tions, this court should not abandon centuries of common law.
Invoking a parade of horribles not before us, the Indepen-
dent Counsel claims that injustice will result if courts cannot
abrogate the attorney-client privilege after the client's death.
While in some cases the privilege will deny information to the
trier of fact, it does so in order to promote a broader and
more important value--encouraging the free flow of informa-
tion from client to lawyer. The common law long ago deter-
mined that the benefits gained by recognizing the privilege
posthumously outweigh whatever damage might flow from
denying information to the trier of fact in any particular case.
Id. at 241 (Tatel, J., dissenting).
Petitioner also seeks rehearing in banc with respect to the
court's work product ruling. Id. at 235-37. Because drawing
a precise line between fact and opinion work product is a
difficult and sensitive question with serious implications for
the attorney-client relationship, and because I think the court
has drawn the line in the wrong place, this issue also war-
rants in banc review.
The court's conclusion that because the interview was
"preliminary" and "initiated" by the client, the lawyer may
not have "sharply focused or weeded" the words of the client,
id. at 236, reflects a view of the lawyer's role very different
from my own experience. No lawyer approaches a client's
problems with a "blank slate." Appellees' Petition for Re-
hearing With Suggestion for Rehearing En Banc at 14. Even
at a first meeting, regardless of who initiates it, lawyers bring
their own judgment, experience, and knowledge of the law to
conversations with clients. Of course lawyers may want to
encourage wide-ranging discussions at first meetings, but
they do so in order to draw out and record information they
think might be important. Unless they take verbatim notes,
the questions they ask and those facts they write down reflect
their own views about what is important to their client's case.
Whether courts can require production of attorney work
product should turn not on the stage of representation or who
initiates a meeting, but on whether the attorney's notes are
entirely factual, or whether they instead represent the "opin-
ions, judgments, and thought processes of counsel." In re
Sealed Case, 676 F.2d 793, 809 (D.C. Cir. 1982).
The notes in this case demonstrate quite clearly that the
lawyer actively exercised his judgment when interviewing his
client. In two hours, he created only three pages of notes.
Far from taking verbatim notes, the lawyer obviously wrote
down what he thought was significant, omitting everything
else. The notes bear the markings of a lawyer focusing the
words of his client; he underlined certain words, placing both
checkmarks and question marks next to certain sections.
The notes clearly represent the opinions, judgments, and
thought processes of counsel.
After this decision, no lawyer will risk having his notes end
up before a grand jury because of a judicial finding that he
had not "sharply focused or weeded" the words of the client;
lawyers will simply stop taking notes at early, critical meet-
ings with clients. Not only will this damage the ability of
lawyers to represent their clients but in the end there will be
no notes for grand juries to see. Similar consequences, of
course, may flow from the court's new attorney-client privi-
lege balancing test; advised that their disclosures might be
unprotected after death, clients may simply not talk candidly.
As the Supreme Court noted in the psychotherapist privilege
context, "[w]ithout a privilege, much of the desirable evidence
to which litigants ... seek access ... is unlikely to come into
being." Jaffee, 116 S. Ct. at 1929. This court's two new
holdings--one chilling client disclosure, the other chilling
lawyer note-taking--will damage the quality of legal repre-
sentation without producing any corresponding benefits to the
fact-finding process.