524 U.S. 399 (1998)
Swidler & Berlin v. United States is a cornerstone Supreme Court decision on the scope and durability of the attorney-client privilege under Federal Rule of Evidence 501.
Does the attorney-client privilege survive the death of the client such that a prosecutor may not compel an attorney to disclose confidential client communications to a grand jury, and is there a posthumous balancing test that can override the privilege in criminal investigations?
Under Federal Rule of Evidence 501, federal privilege law is governed by the common law as interpreted in the light of reason and experience. The attorney-client privilege protects confidential communications between attorney and client made for the purpose of obtaining or providing legal advice. As a matter of longstanding common law tradition, the privilege survives the client's death. Absent waiver by the client (or the client's estate where appropriate) or a recognized, narrow exception (e.g., the crime-fraud exception, or the testamentary exception to effectuate a decedent's intent in estate disputes), courts may not compel disclosure of such communications—even upon a showing of prosecutorial need in criminal matters.
Yes. The attorney-client privilege survives the client's death, and there is no general posthumous balancing test permitting compelled disclosure of privileged communications in a criminal investigation. The subpoena for the attorney's notes, which reflected privileged communications, could not be enforced.
Swidler & Berlin is a leading case on the durability of the attorney-client privilege under Rule 501. It instructs that the privilege survives death and is not subject to a generalized posthumous balancing test, even in criminal investigations. For law students, the case clarifies how federal common law privileges are shaped by history and policy, delineates the relationship between privilege and narrow, well-established exceptions (such as testamentary disputes and crime-fraud), and underscores the ex ante function of privilege to promote candor. In practice, it protects attorneys from grand jury subpoenas seeking a deceased client's confidential communications and reinforces that attorney notes revealing such communications are likewise protected.