The U.S. Supreme Court case Swidler & Berlin and James Hamilton v. United States in 1997 revolved around the issue of attorney-client privilege after a client's death. The case was initiated when Independent Counsel Kenneth Starr subpoenaed notes taken by an attorney during a meeting with Deputy White House Counsel Vincent Foster nine days before Foster's suicide, as part of an investigation into President Bill Clinton’s alleged misconducts. The court ruled in favor of Swidler & Berlin and James Hamilton, upholding that the attorney-client privilege extends beyond the death of a client to protect confidential communications between them from being disclosed. This decision reinforced the importance and sanctity of confidentiality within legal representation even posthumously.

In the dissenting opinion for SWIDLER & BERLIN AND JAMES HAMILTON v. UNITED STATES, Justice O'Connor argued that attorney-client privilege should not extend beyond a client's death in cases where criminal conduct is involved. She contended that the majority’s decision to uphold this privilege even after death could potentially shield crucial evidence of wrongdoing from investigators and prosecutors, thereby undermining justice. The dissent also expressed concern about creating an absolute rule regarding posthumous attorney-client privilege without considering potential exceptions or balancing interests on a case-by-case basis. It was suggested that courts should have discretion to weigh factors such as the importance of the evidence, availability of other sources, and societal interest in uncovering wrongful acts against maintaining confidentiality after a client's death.