Lawyers: Questions arising from the Bruce Ivins case.

The coverage of the Bruce Ivins case has raised a number of questions that I believe should have factual answers. Obviously, given the forum, I’m not interested in Conspiracy Theories™, just these, and related, questions.

Does the attorney/client privilege survive the death of the client? Ivins’ lawyer has been publicly asserting that if the case had gone to court, Ivins would have been found not guilty. Now that Ivins is dead, is his lawyer still precluded by the A/CP from revealing what he may know, incriminating or exculpatory, about the case?

Does the attorney have any legal/ethical obligations to his late client, his relatives, or estate, WRT continuing to defend the client’s reputation?

Could he, or Ivins’ relatives, estate, or anyone else, take any legal action (e.g. a libel or defamation suit) against the government?

Conversely, now that the client is dead, can the government gain access to material that might have been privileged while Ivins was alive?


Standard disclaimer: I am answering this question based on general legal principles. Neither the original poster nor anyone reading this thread should take what I say as legal advice. If you are motivated by anything other than curiosity about general legal principles, you should speak with an attorney licensed in your jurisdiction.

Re the attorney client privilege, the purpose of the privilege is to encourage the client to be fully candid with the attorney. If you as a client thought that, say, some embarrassing fact would no longer be secret, you might be tempted to avoid telling your attorney. So, generally speaking, the privilege will survive your death. But per this article in Reason magazine discusses at least one situation where the court found an exception to this rule.

As to defamation, I believe that in most jurisdictions an estate cannot sue for defamation.

I don’t know the scope of the relationship between the attorney and Ivins, but generally speaking an attorney does not have an obligation to defend someone’s reputation in the press. If an attorney is engaged to defend a client in a criminal matter, the attorney is only responsible for defending the client in court.

As to your final question about the government getting access to additional information now that Ivins is dead, see the Reason article cited above for a discussion of a case where it appears that the government was able to do so.

Can I pose a slightly off-topic hypothetical?

Let’s say that Ivins did NOT die. The prosecution took his case before the Grand Jury as planned, and the Grand Jury did NOT find enough evidence to move forward with the indictment.

Now the FBI is back to square one. They either have to find another suspect, find more evidence on Ivins, or give up entirely.

But Ivins died. So their case will NOT go before the Grand Jury, so we have only their say-so that the case is closed, and He Was the Guy. Right?

Seems to me the case still should have gone to the Grand Jury, simply as a matter of vetting the case, and ensuring that the Anthrax killer was not still at large.

The Grand Jury decides whether to indict or not; ie, is the case plausible. It would say nothing about whether the person charged was guilty, the case was the only one that could be brought, or if the public was safe.

Don’t expect too much of the grand jury, which is almost always just a tool of the prosecutor. No one testifies before the grand jury unless called by the prosecutor; no one may bring a lawyer with him or her into the grand jury room. No one has the right to have exculpatory evidence presented to a grand jury. As New York judge Sol Wachtler once notoriously said, “A grand jury would indict a ham sandwich” if a prosecutor asked it to.

IMHO, attorney client privilege survives the death of the client. The privilege will be held by the Estate of the Decedent, so it could theoretically be waived by the Estate.

The attorney’s duties are to not reveal anything told him in confidence by his client. He doesn’t have a duty to to go out and defend his client’s reputation.

Good distinction. Thanks.

you can’t defame a dead person. (well, you can, but it’s not actionable)

The privilege does indeed survive the death of the client in Ivins’ case. The U.S. Supreme Court ruled that the federal attorney-client privilege doesn’t terminate with the death of the client in Swidler & Berlin v. United States, 524 U.S. 399 (1998), in which Kenneth Starr tried to get some notes taken by White House Deputy Counsel during a conversation with Vince Foster.

Libel and slander cases generally abate with the death of the party, but it wouldn’t have mattered had he lived; the federal government enjoys sovereign immunity from tort lawsuit except to the degree that it has waived immunity under the Federal Torts Claims Act, and liability for slander and libel aren’t waived. I believe an action for malicious prosecution case can be bought in federal court if the laws of the state where the action accrued allows it, but I’d have to look it up.