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Starr Is Denied Foster Notes

The Supreme Court Thursday thwarted Whitewater prosecutor Kenneth Starr's effort to get the notes taken by White House aide Vincent Foster's lawyer during a meeting shortly before Foster's 1993 suicide.

The court, by a 6-3 vote, ruled that the attorney-client privilege of confidentiality protects against disclosure of the notes even after Foster's death. Click here for an explanation of attorney-client privilege by CBS News Legal Correspondent Kristin Jeannette-Meyers.

The decision, a setback for Starr, will have an enormous lasting impact on the legal profession and all Americans who seek a lawyer's help.

The justices overturned a federal appeals court ruling that Washington lawyer James Hamilton's three pages of notes might have to be surrendered to a Whitewater grand jury that subpoenaed them in 1995.

"It has been generally, if not universally, accepted for well over a century that the attorney-client privilege survives the death of the client in a case such as this," Chief Justice William H. Rehnquist wrote for the court. "While the arguments against the survival of the privilege are by no means frivolous, they are based in large part on speculation."

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Starr is trying to determine whether presidential aides lied about the role of Hillary Rodham Clinton in a White House purge of its travel office staff. She has said she had no role, but a draft memo by a former White House aide given to Whitewater investigators in 1996 says the first lady was behind the dismissals in the seven-employee office.

The memo also says that Foster spoke to Mrs. Clinton about the travel office issue.

Foster's 1993 conversation with Hamilton focused on those firings, but Hamilton claimed an attorney-client privilege and sought to keep his notes from Whitewater investigators.

Rehnquist was joined by Justices John Paul Stevens, Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer.

Justices Sandra Day O'Connor, Antonin Scalia, and Clarence Thomas dissented.

Writing for the three, O'Connor said that although the privilege "ordinarily will survive the death of the client," it does not always trump the need for information in a criminal case.

"A criminal defendant's right to exculpatory evidence or a compelling law enforcement need for information may, where the testimony is not available from other sources, override a client's posthumous interest in confidentiality," O'Connor said.

Never before had the Supreme Court ruled on whether the time-honored privilege extends beyond the grav.

Thursday's decision likely will end efforts contemplated by some to seek disclosure of long-sealed papers in the 106-year-old case of Lizzie Borden, who was prosecuted but acquitted of the hatchet murders of her parents.

The notes of Borden's defense lawyer, George Robinson, are locked away in the offices of the Springfield, Mass., law firm he founded.

In the case decided Thursday, Hamilton took notes during a July 11, 1993, meeting with Foster. Nine days later, Foster was found dead in a park outside Washington. Authorities said he died of a self-inflicted gunshot wound.

Starr had conceded that Hamilton's notes would be protected if Foster were still alive, but he argued that Foster's death ended the legal privilege.

That argument was vehemently opposed by the American Bar Association, National Association of Criminal Defense Lawyers, American Corporate Counsel Association, and National Hospice Organization.

Written by Richard Carelli

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