Who Can Waive a Dead Client’s Privilege?

March 1, 2006

Everyone agrees that the attorney-client privilege lasts beyond the client’s death, but courts disagree about who can waive the privilege after the client dies.

In Ohio v. Doe, 433 F.3d 502 (6th Cir. 2006), the court dealt with a procedural issue arising from a former federal public defender’s efforts to remove a case to federal court. The public defender had refused to disclose communications with her client (who had since died) about the disappearance of a nine-year-old girl. The public defender wanted the case in federal court, because (as the Sixth Circuit explained), Ohio law allows a surviving spouse to waive a deceased spouse’s privilege (as the client’s widow had done here), while “the federal common law attorney-client privilege survives a client’s death and has not recognized any exception that would allow waiver in the criminal context.” Id. at 504.

Some states do not follow the Ohio model, so the issue of a surviving spouse’s waiver varies from state to state.