A State Supreme Court Discusses Whether the Attorney-Client Privilege Survives the Client’s Death

December 10, 2003

The last time that the United State Supreme Court addressed the attorney-client privilege, it held that Vince Foster’s privilege survived his suicide. Now a state supreme court has addressed the same issue. In re Investigation of the Death of Eric Dewayne Miller, 584 S.E.2d 772 (N.C. 2003).

In a tale worthy of soap opera, a noted North Carolina research scientist died of arsenic poisoning after drinking a beer given to him in a bowling alley by his wife’s co-worker. The scientist commented at the time that the bowling alley beer had a “funny taste,” but—perhaps understandably—his comment did not arouse any suspicion at the time. After the research scientist died, investigators soon found that his wife had been having an affair with her co-worker. As the police closed in, the co-worker met with his lawyer, and then killed himself. The state argued that the co-worker’s widow/executrix could waive the privilege, but the applicable North Carolina statute did not give her that right. The state also argued that the interests of justice outweighed the attorney-client privilege. The North Carolina Supreme Court ordered an in camera review of the communications to determine if they deserved privilege protection, and also acknowledged the possibility that any privilege might be outweighed by the interests of justice.

Given the United State Supreme Court’s rejection of any “balancing tests” in applying the attorney-client privilege, it is interesting that North Carolina would acknowledge that the privilege might be outweighed by other interests (although the court found it premature to face that possibility).