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KEEPING SECRETS SECRET By Jerome J. Shestack, President, American Bar Association

By Jerome J. Shestack, President, American Bar Association

In thousands of nursing homes, hospitals, retirement communities and law offices around this country, men and women tell their lawyers things they would never tell their families, their bankers, or their local constabulary. They seek confidential guidance in how best to provide for their loved ones after death. The secrets they share may be embarrassing to themselves or others. They may relate to sensitive business transactions. They may put other individuals at risk. They may create or destroy financial opportunities for unknown observers.

Some wish to provide for an illegitimate child.

Some seek to make amends for a previous misdeed by themselves or someone else.

Some simply wish to explore their options to dispose of hard-earned assets in unexpected ways.

They do so trusting that the confidences they share with their lawyers will not become public, and from at least 1908 until now they were right.

But if Independent Counsel Kenneth Starr has his way, they and indeed all of us had best be more careful with our secrets in future.

Shortly before committing suicide, Vincent Foster privately consulted with a lawyer, James Hamilton. Starr believes Hamilton's notes may contain evidence for his investigation of the President, and asked the U.S. Court of Appeals for the District of Columbia to require Hamilton to surrender them. The Court of Appeals ruled that a client's death weakens the historic privilege, and ordered Hamilton to comply. Because Vincent Foster is dead, reasoned the court, he cannot be held liable for a crime. The client's interest wanes, and the prosecutor's needs prevail.

Under that logic, clients presumably don't care if their secrets risk exposing family members to criminal prosecution, and have little interest in their own or anyone else's reputation after death. But if clients really were so indifferent to what might happen after they die, they would not bother consulting lawyers in the first place.

If the ruling stands, each of us will be faced with a cruel choice. Should we seek our lawyer's help and risk unwanted exposure of our secrets, or should we forego legal counsel, and perhaps even risk the security of those we love.

The lawyer-client privilege is the oldest legally sanctioned confidence known to the common law. Its purpose is to encourage full and frank communication between lawyers and clients. It recognizes that sound legal advice serves the public interest, and that such advice depends on a lawyer being fully informed by a client who has enough trust in the confidentiality of the relationship to be frank.

As Chief Justice Leuel Shaw of the Supreme Judicial Court of Massachusetts said more than 150 years ago, the privilege requires that confidences to an attorney "shall be for ever sealed."

Editors: Contact Chris Tozer, American Bar Association, 312/988-6128, for verification.