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The recent Supreme Court decision affirming that attorney-client privilege survives death was strongly supported by APA, which signed an amicus brief urging the court to uphold the privilege.
"We joined in not because it spoke directly to the psychiatrist-patient privilege, but because the strongest privilege is attorney-client," explained Richard Ciccone, M.D., chair of the APA Commission on Judicial Action. "Anything that weakened that would tend to further weaken psychiatrist-patient privilege, which is already more limited than attorney-client privilege."
APA immediate past president Herbert Sacks, M.D., had followed the case, Swidler & Berlin vs. United States, closely as it moved from the lower court to the Supreme Court, he told Psychiatric News.
"My concern was not focused" on the legal strategy, but rather "my recognition that should confidentiality after death between an attorney and client be subverted, a series of other barriers would begin to fall, including the minister-parishioner and finally the doctor-patient."
Sacks praised Ciccone and the Commission on Judicial Action for having moved with "clarity and dispatch." He noted that at its July meeting, the Board of Trustees unanimously endorsed the executive action that led to APA's signing the amicus brief.
In a summary prepared for the July meeting of the APA Board of Trustees, Ciccone noted that "the court's ruling will doubtless convey the message that any post-death breach of well-recognized privileges is highly suspect. That is the most we could have hoped for."
The Supreme Court case was yet another spin-off of the ever-widening investigation of President Clinton by independent counsel Kenneth Starr, J.D. In this case, Starr wanted to learn whether Vince Foster, who committed suicide in 1993, knew of any criminal wrongdoing in relationship to the firing of White House travel office staff early in the Clinton administration. Starr subpoenaed the notes of Foster's attorney, James Hamilton, J.D., of Swidler and Berlin, asserting that Foster's and Hamilton's attorney-client privilege died when Foster died.
A lower court sided with Starr, holding that Hamilton's notes from his meetings with Foster were not protected by attorney-client privilege, and that an exception should apply to "post-death use in criminal proceedings," including grand jury proceedings. The court held that such material should be available if it bears "on a significant aspect of the crimes at issue and there is a scarcity of [other] reliable evidence."
On June 25 the Supreme Court overturned that decision 6 to 3, holding that attorney-client privilege survives the client's death. In its brief, the court cited Jaffee vs. Redmond, the 1996 ruling that established for the first time a psychotherapist-patient privilege in federal civil and criminal cases.
Richard Taranto, J.D., is legal counsel to APA's Commission on Judicial Action. "It reaffirms the basic principle that the assurance of confidentiality is important to the communications that take place in the relationship," he told Psychiatric News. "That principle is as true of psychotherapist-patient privilege as it is of attorney-client privilege. The reason we signed on was the underlying principle that fear of disclosure after death would itself impede communication important to the relationship."
In Jaffee v. Redmond, the Supreme Court established "the very fundamental principle that the federal courts do recognize the psychotherapist-patient privilege and that the privilege is categorical, not subject to case-by-case balancing against the need for evidence," Taranto explained.
Taken together, the two cases "send a message to the lower courts that in deciding what exceptions, if any, to recognize for the privilege, the need for confidentiality must be weighed very heavily."
"APA wanted to be part of this because it relates to our own concerns about confidentiality," said Philip Margolis, M.D., Assembly liaison to the commission. "It's very close to psychiatry in the sense that we wonder what happens to the privilege with the therapist when a patient dies."
(Swidler & Berlin et al vs. United States, No. 97-1192)
The text of the Supreme Court decision in this case is posted on the Web at www.findlaw.com.