Lawyer for Vincent Foster Loses Battle to Keep Notes

WASHINGTON — A private attorney for the late Vincent Foster, the deputy White House counsel who committed suicide in July 1993, will have to give an independent counsel some of his notes from a conversation he had with Foster about the firings of White House travel office employees, a federal appeals court panel ruled Friday.

In a 2-1 decision, the panel of the U.S. Court of Appeals for the D.C. Circuit said the attorney, whom sources identified as James Hamilton, cannot invoke the attorney-client privilege in a criminal matter for a client who is dead.

The decision reverses a lower court ruling by former chief judge John Garret Penn, who quashed a subpoena for the notes by independent counsel Kenneth W. Starr. Starr is investigating President Clinton’s and Hillary Rodham Clinton’s involvement in the so-called Whitewater real estate deal in Arkansas, as well as the firings of seven travel office employees in May 1993.

Investigators have concluded that Foster killed himself because he was despondent over criticism that followed the firings. A notebook Foster kept showed he was upset over the barrage of criticism leveled at the White House, especially at Hillary Clinton.

Foster’s body was found in a Virginia park on July 20, 1993.

Barry Toiv, a White House spokesman, had no comment. Hamilton is on vacation. A Starr spokesman declined to comment.

The panel sent the matter back to the lower court, ordering it to reexamine the notes and to release portions of them.

Judge Stephen F. Williams, writing on behalf of himself and Judge Patricia M. Wald, said preserving the attorney-client privilege in a criminal matter improperly “obstructs the truth-finding process,” and should not be permitted when investigators have only a few sources to consult to get the information they need.

Williams said the attorney-client privilege will not be significantly affected because clients who die won’t know that their lawyers have been forced to reveal their secrets. Because they’re dead, Williams and Wald concluded, the clients can’t be charged with crimes and they can no longer be concerned about their reputations.

“This assumption . . . defies common sense and experience,” Judge David S. Tatel wrote in a dissent. “From Andrew Carnegie’s libraries to Henry Ford’s foundation, one need only count the schools and universities, academic chairs and scholarships . . . even acts of Congress bearing the names of their founders . . . to understand that human beings care deeply about how posterity will view them.”

Tatel said the majority’s decision “strikes a fundamental blow to the attorney-client privilege.”