dissenting: *
Offered no persuasive reason to depart from the common law’s posthumous protection of the attorney-client privilege and appreciating its importance in encouraging “full and frank communication” by clients with their lawyers, I would affirm the district court’s judgment that the privilege protects the attorney’s notes of his conversation with his now-deceased client. I therefore need not consider whether the notes are attorney work product.
I
Finding its first expression in the courts of Elizabethan England, see 8 Wigmore, Evidence § 2290 (McNaughton rev.1961), and accepted in the courts of the United States from the earliest days of the republic, see, e.g., Chirac v. Reinicker, 24 U.S. (11 Wheat.) 280, 294, 6 L.Ed. 474 (1826), the attorney-client privilege is the oldest privilege for confidential communications known to the common law. Extending well beyond protecting the interests of clients, the privilege “encourage[s] full and frank communication between attorneys and their clients and thereby promote[s] broader public interests in the observance of law and administration of justice.” Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 682, 66 L.Ed.2d 584 (1981). Fully informed lawyers participating in the legal system as officers of the court sharpen the adversary process, thus improving the quality of judicial decisionmak-ing and the development of the law. By encouraging individuals to consult lawyers and disclose to them candidly and fully, the attorney-client privilege also allows the nation’s legal profession to help individuals understand their legal obligations and facilitate their voluntary compliance with them. Such voluntary compliance is particularly important to a free society which neither has nor should want sufficient law enforcement resources to search out and punish every violation of every law. See id.; see also Trammel v. United States, 445 U.S. 40, 51, 100 S.Ct. 906, 913, 63 L.Ed.2d 186 (1980); In the Matter of a John Doe Grand Jury Investigation, 408 Mass. 480, 562 N.E.2d 69, 70 (1990).
The attorney-client privilege recognizes that sound legal advice does not “spring from lawyers’ heads as Athena did from the brow of Zeus,” In re Sealed Case, 737 F.2d 94, 99 (D.C.Cir.1984), but instead depends “upon the lawyer’s being fully informed by the client.” Upjohn, 449 U.S. at 389,101 S.Ct. at 682. Although on occasion the attorney-client privilege can “ha[ve] the effect of withholding relevant information from the factfinder,” Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 1577, 48 L.Ed.2d 39 (1976), courts sustain the privilege in individual cases to accomplish its larger systemic benefits — the greater law compliance and fairer judicial proceedings resulting from the “sound legal advice [and] advocacy” the privilege promotes. Upjohn, 449 U.S. at 389, 101 S.Ct. at 682.
Like the spousal, priest-penitent, and psychotherapist-patient privileges, the attorney-client privilege is “ ‘rooted in the imperative need for confidence and trust.’ ” Jaffee v. Redmond, — U.S. -, -, 116 S.Ct. 1923, 1928, 135 L.Ed.2d 337 (1996) (quoting Trammel, 445 U.S. at 51, 100 S.Ct. at 913). As the Supreme Court recognized more than a century ago, the assistance of counsel “can only be safely and readily availed of when free from the consequences or the apprehension of disclosure.” Hunt v. Blackburn, 128 *238U.S. 464, 470, 9 S.Ct. 125, 127, 32 L.Ed. 488 (1888). Because individuals frequently seek legal counsel concerning embarrassing, disgraceful, or criminal conduct, “the mere possibility of disclosure” of communications about such subjects may “impede development of the confidential relationship,” Jaffee, — U.S. at-, 116 S.Ct. at 1928, thereby eroding the substantial benefits to the justice system afforded by well-informed legal counsel. Lawyers who have represented clients in sensitive matters know the key words to full disclosure:
I cannot represent you effectively unless I know everything. I will hold all our conversations in the strictest of confidence. Now, please tell me the whole story.
Since at least the mid-nineteenth century, the common law has protected the attorney-client privilege after a client’s death. See, e.g., Hart v. Thompson’s Executor, 15 La. 88, 93 (1840) (upholding privilege after client’s death); Simon Greenleaf, 1 Treatise on the Law of Evidence 310 (1850) (privilege not affected by death of client). Other than in testamentary disputes, for which there exists a well-established and independently justified exception not applicable to the case before us, see, e.g., Glover v. Patten, 165 U.S. 394, 406-08, 17 S.Ct. 411, 415-17, 41 L.Ed. 760 (1897), both state and federal courts have consistently followed the common law rule, whether the privilege is claimed in civil litigation, see, e.g., United States v. Osborn, 561 F.2d 1334 (9th Cir.1977); Baldwin v. Commissioner of Internal Revenue, 125 F.2d 812, 814 (9th Cir.1942); People v. Pena, 151 Cal. App.3d 462, 198 Cal.Rptr. 819, 828 (1984); Lamb v. Lamb, 124 Ill.App.3d 687, 80 Ill.Dec. 8, 464 N.E.2d 873, 877 (1984); Bailey v. Chicago, Burlington & Quincy R.R. Co., 179 N.W.2d 560, 564 (Iowa 1970), or in criminal proceedings, see, e.g., State v. Macumber, 112 Ariz. 569, 544 P.2d 1084, 1086 (1976); John Doe Grand Jury Investigation, 562 N.E.2d at 72; People v. Modzelewski, 203 A.D.2d 594, 611 N.Y.S.2d 22, 23 (N.Y.App.Div.1994); Cooper v. State, 661 P.2d 905, 907 (Okla.Cr. App.1983); State v. Doster, 276 S.C. 647, 284 S.E.2d 218, 219 (1981); see also 8 Wigmore, Evidence § 2323 & n.2 (citing additional cases). Incorporated in the model codes of evidence, see id. § 2292 n.2 (quoting Uniform Rule of Evidence § 26(1)); Model Code of Evidence, Rule 209(e)(i) (1942), adopted by the Supreme Court’s Advisory Committee, see 1 Michael H. Graham, Handbook of Federal Evidence 521 (discussing Standard 503), and codified by at least twenty state legislatures, see, e.g., Gregory P. Joseph & Stephen A. Salzburg, Evidence in America: The Federal Rules in the States § 24.2 (1992) (citing 19 state codes); Cal. Evid. Code § 953 (West 1995), the common law rule admits “no exception” that outside the testamentary context, the attorney-client privilege survives the client’s death. Restatement (Third) of the Law Governing Lawyers § 127 cmt. d (Proposed Final Draft No. 1, 1996); see also id. (citing additional authorities); Edna S. Epstein, The Attorney-Client Privilege and the Work-Product Doctrine 234 (3d ed.1997) (“The duration of the privilege, once it attaches, persists unless the lawyer is released by the client. Upon the death of the client, no release is possible. Hence death should seal the lawyer’s lips forever.”).
Although rarely articulated, the rationale underlying the common law rule makes sense. By preserving the privilege after the client’s death, the law ensures that the privacy afforded those who confide in counsel extends to those who would otherwise take their secrets to the grave. The common law rule thus encourages individuals to seek legal advice, bringing the benefit of such consultation to themselves, the legal system, and society. See Fisher, 425 U.S. at 403, 96 S.Ct. at 1576 (“As a practical matter, if the client knows that damaging information could more readily be obtained from the attorney following disclosure than from himself in the absence of disclosure, the client would be reluctant to confide in his lawyer and it would be difficult to obtain fully informed legal advice.”). As Wigmore explains:
The subjective freedom of the client, which it is the purpose of the privilege to secure ..., could not be attained if the client understood that, when the relation ended or even after the client’s death, the attorney could be compelled to disclose the confidences, for there is no limit of time beyond which the disclosures might not be *239used to the detriment of the client or of his estate.
8 Wigmore, Evidence § 2323.
II
Justifiably unwilling to embrace the Independent Counsel’s call for wholesale abrogation of the privilege in federal criminal cases after a client’s death, the court today adopts a balancing test under which posthumous availability of the privilege turns on an ex post facto assessment of the evidence’s importance, a test that neither party to this litigation advocates and that, notwithstanding protestations to the contrary, Maj. Op. at 231-32, represents a dramatic departure from the common law rule. The court cites no cases supporting its new rule, relying instead on views of commentators never accepted by any court or legislature. See, e.g., 24 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure: Evidence § 5498 (1986 & Supp.1997); Maj. Op. at 232-33. The court sees particular significance in a draft revision of the Restatement (Third) of the Law Governing Lawyers supporting a posthumous exception to the common law rule. Maj. Op. at 233. The Restatement, however, candidly acknowledges that “no court or legislature has adopted” such an exception. Restatement (Third) of the Law Governing Lawyers § 127, cmt. d (Proposed Final Draft No. 1, 1996). The court also observes that the common law rule is most often stated in cases involving the testamentary exception and that “holdings actually manifesting the posthumous force of the privilege are relatively rare.” Maj. Op. at 232 (emphasis in original). These observations prove nothing. Such holdings appear rarely not because judicial recognition of a posthumous privilege is “tepid,” id. at 232, but because situations where the attorney-client privilege is challenged after a client’s death occur rarely. Most significantly, in all but one reported case where the attorney-client privilege was challenged after a client’s death, courts have upheld the privilege, even where the result denied critical information to the trier of fact. See, e.g., John Doe Grand Jury Investigation, 562 N.E.2d at 72 (attorney could not be compelled to testify about what deceased client told him prior to committing suicide, even though the testimony might have brought an end to murder investigation); Macumber, 544 P.2d at 1086 (trial court properly excluded testimony of two attorneys that a person other than the defendant had confessed to them of committing the murder for which defendant was tried); see also Simon J. Frankel, The Attorney-Client Privilege After the Death of the Client,6 Geo. J. Legal Ethics 45, 65 (1992). But see Cohen v. Jenkintown Cab Co., 238 Pa.Super. 456, 357 A.2d 689, 693 (1976) (where testimony sought did not contain “scandalous and impertinent matter which would serve to blacken the memory” of the deceased client, and where need for testimony is “clearly established,” court could compel attorney to testify)-
There is a very good reason why no ease law supports my colleagues’ new balancing test: Unless clients know before consulting their lawyers exactly what information the privilege protects — knowledge denied by the court’s balancing test — few will confide candidly and fully. After this decision, lawyers will have to add an important caveat to what they advise their clients about confidentiality:
I cannot represent you effectively unless I know everything. I will hold all our conversations in the strictest of confidence. But when you die, I could be forced to testify — against your interests — in a criminal investigation or trial, even of your friends or family, if the court decides that what you tell me is important to the prosecution. Now, please tell me the whole story.
Because clients so advised will not know whether their confidences will be protected, they will be less likely to disclose sensitive or potentially inculpatory information. “If the purpose of the attorney-client privilege is to be served,” said the Supreme Court in Upjohn, “the attorney and client must be able to predict with some degree of certainty whether particular discussions will be protected.” Upjohn, 449 U.S. at 393, 101 S.Ct at 684. As the Court put it, “[a]n uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.” Id. Consistent with this reasoning, federal courts *240uniformly hold that where applicable, the attorney-client privilege, unlike qualified privileges, see, e.g., In re Sealed Case, 116 F.3d 550 (D.C.Cir.1997) (dealing with executive privilege and requiring specific demonstration of evidence’s importance to grand jury investigation and unavailability from other sources), cannot be overridden by a showing of need. See, e.g., Admiral Ins. Co. v. United States Dist. Ct. for the Dist. of Ariz., 881 F.2d 1486, 1494 (9th Cir.1989) (conditional protection of work product doctrine “cannot logically be extended to support an unavailability exception to the attorney-client privilege”); In re Grand Jury Subpoena, 599 F.2d 504, 510 (2d Cir.1979) (attorney-client privilege is unqualified); Murl A. Larkin, Federal Testimonial Privileges § 2.01, at 2-7 to 2-8 (citing cases and noting that “once the privilege has been held applicable, information protected thereunder may not be the subject of compelled disclosure regardless of the need or good cause shown”). For the same reasons and citing Upjohn, the Supreme Court, in the case of the psychoanalyst privilege, rejected a balancing test which, like the one the court adopts today, turned in large part on the importance of the information sought by the prosecution: “Making the promise of confidentiality contingent upon a trial judge’s later evaluation of the relative importance of the patient’s interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege.” Jaffee, — U.S. at-, 116 S.Ct. at 1932.
My colleagues characterize the absolute nature of the attorney-client privilege as “illusory.” Maj. Op. at 234. Pointing to the testamentary exception and to the well-accepted proposition that statements relating to future illegality find no protection in the attorney-client privilege, they suggest that their new exception, limited to criminal proceedings after the client’s death, will likewise not weaken the privilege. Both the testamentary exception and the exclusion of statements of future criminality, however, differ significantly from the balancing test the court adopts today. In those two situations, clients know up front with certainty that the statements they make are unprotected by the privilege. Beyond those two clear situations, clients and their lawyers cannot predict whether a Ghent’s statement might some day relate to a criminal investigation, much less whether a court applying my colleagues’ balancing test will subsequently decide that the information “bear[s] on a significant aspect of the crimes at issue.” Id. at 235. Because of this uncertainty, the court’s balancing test produces precisely the same “murkiness that persuaded the Court in Upjohn and Jaffee to reject the limitations proposed there.” Id.
The court believes its balancing test will not damage the attorney-client privilege because people are generally indifferent to the effect posthumous disclosures of confidences could have on their reputations. This assumption of the unimportance of posthumous reputation, however, runs counter to the rationale underlying the common law rule. See Frankel, The Attorney-Client Privilege After the Death of the Client at 61-63 & n.91. It also defies both common sense and experience. From Andrew Carnegie’s libraries to Henry Ford’s foundation, one need only count the schools and universities, academic chairs and scholarships, charitable foundations, research institutes, and sports arenas — even Acts of Congress — bearing the names of their founders, benefactors, or authors to understand that human beings care deeply about how posterity will view them. Evidence of concern for surviving friends and family likewise abounds: people write wills, convey property, buy life insurance, invest for their children’s education, and make guardianship arrangements to protect the interests of loved ones. Prominent public officials restrict access to their papers to protect reputations. Of course, such concerns may not influence every decision to confide potentially damaging information to attorneys. But because these concerns very well may affect some decisions, particularly by the aged, the seriously ill, the suicidal, or those with heightened interests in their posthumous reputations, I cannot accept the court’s assumption that the attorney-client relationship will not suffer if the privilege is limited after a client’s death. I agree with the Supreme Judicial Court of Massachusetts: “to disclose information given to [an *241attorney] by a client in confidence, even though such disclosure might be limited to the period after the client’s death, would in many instances ... so deter the client from ‘telling ah’ as to seriously impair the attorney’s ability to function effectively.” John Doe Grand Jury Investigation, 562 N.E.2d at 71.
The facts of the present case vividly illustrate the value a person can place on reputation.
Although I concede that no single case can prove the utility of maintaining the privilege beyond a Ghent’s death, this ease seems a particularly inappropriate one in which to abrogate the common law’s posthumous protection of the attorney-client privilege.
The court suggests that because it limits its balancing test to criminal cases and because criminal liability ceases with death, its test will not chill client communications with their lawyers. Maj. Op. at 233-34. But clients often reveal to their lawyers much more than information about their own criminal liability: they may disclose information that could expose friends, family, or business associates to criminal culpability — which does not terminate with the client’s death — as well as information that could damage their own reputations. The possible release of such information could chill the attorney-client relationship just as seriously as the release of information about the Ghent’s own criminal liability.
The court claims that unless the privilege terminates at the clients death, information will be lost that could have been sought from the ehent while ahve. Id. at 233-34. The common law rule, however, long ago determined that the benefits the legal system gains through recognizing the privilege posthumously outweigh whatever damage might flow from denying information to the factfinder in a particular case. Further balancing on a case by case basis will undermine the privilege. Moreover, if limiting the scope of the privilege deters “full and frank” attorney-client communication, as the common law assumes, who can say that in the absence of the privilege information later sought in criminal proceedings would have been shared with counsel in the first place? As the Supreme Court explained in the psychotherapist privilege context, “[without a privilege, much of the desirable evidence to which litigants ... seek access ... is unlikely to come into being.” Jaffee, — U.S. at -, 116 S.Ct. at 1929; see also Salzburg, Privileges and Professionals: Lawyers and Psychiatrists, 66 Va. L. Rev. 597, 610 (1980) (“The privilege creates a zone of privacy in which an attorney and client can create information that did not exist before and might not exist otherwise.”). Clients will be particularly reluctant to share critical information with their lawyers in cases where both the client’s death and the possibility of criminal investigation are foreseeable. Perhaps this is such a case, for at oral argument, the deceased’s lawyer told us:
Nor can I see any way to limit the court’s “information loss” argument to cases in which the client has died. Witnesses unable to remember facts, incompetent to testify, or beyond the court’s process likewise deny relevant information to the factfinder. Yet neither the Independent Counsel nor this court suggests that we abrogate the attorney-client privilege to fill in these evidentiary gaps. The unavailability of a witness likewise does no greater harm to the factfinding process than an available witness who testifies inaccurately. Again, no one would suggest that we call upon attorneys to corroborate or correct their clients’ eveiy statement. The reason is simple: accepting that some information may be lost to a factfinder, we insu*242late the attorney-client relationship from the prospect of these intrusions in order to promote the “‘confidence and trust/” Jaffee, — U.S. at-, 116 S.Ct. at 1928 (quoting Trammel, 445 U.S. at 51, 100 S.Ct. at 913), necessary for the relationship to work and to afford society its benefits. See Admiral Ins. Co., 881 F.2d at 1494 (“Any inequity in terms of access to information is the price the system pays to maintain the integrity of the privilege.”). Neither the court nor the Independent Counsel has offered any convincing reason why a client’s death should be treated differently than these other circumstances.
At the end of its discussion of the attorney-client privilege, the court suggests that district courts could protect clients’ interests by ordering that their lawyers’ testimony be kept confidential. Maj. Op. at 235. But evidence essential to the prosecution’s case at trial cannot ultimately remain confidential. In any event, the privilege’s fundamental purpose is to encourage clients to share information with their lawyers, not to maintain the information’s confidentiality. Qualified promises of confidentiality' — “Don’t worry, if I am compelled to reveal what you tell me, the court will make sure that no one hears it other than the U.S. Attorney and the federal grand jury” — are unlikely to encourage worried clients to make candid and full disclosures to their attorneys.
Ill
The court’s decision too readily dismisses the continuing vitality of the common law rule in the states. “It is appropriate to treat a consistent body of policy determinations by state legislatures as reflecting both ‘reason’ and ‘experience.’ ” Jaffee, — U.S. at-, 116 S.Ct. at 1930 (quoting Funk v. United States, 290 U.S. 371, 376-81, 54 S.Ct. 212, 213-16, 78 L.Ed. 369 (1933)). The fact that the common law’s posthumous recognition of the privilege outside testamentary disputes appears to have been embraced by every state that has codified the privilege — and remains the law in those that have not— counsels against casting it aside simply because the Independent Counsel and a few commentators question its usefulness. That the common law rule was likewise adopted by the Supreme Court’s Advisory Committee, as well as by the committees who drafted the Model Code of Evidence and the Uniform Rules of Evidence, reinforces the conclusion that “ ‘reason’ and ‘experience’ ” support posthumous protection of the attorney-client privilege. Id.; Citibank, N.A. v. Andros, 666 F.2d 1192, 1195 & n. 6 (8th Cir.1981) (Supreme Court Proposed Federal Rule of Evidence 503(c) useful “as a source for defining the federal common law of attorney-client privilege”).
Because the court’s balancing test strikes a fundamental blow to the attorney-client privilege and jeopardizes its benefits to the legal system and society, I respectfully dissent.
In order to preserve the secrecy of the grand jury proceedings, selected portions of this dissent have been deleted from the published opinion,