Secrets Clutched in a Dead Hand: Rethinking Posthumous Psychotherapist-Patient Privilege in the Light of Reason and Experience with Other Evidentiary Privileges

TABLE OF CONTENTS I. INTRODUCTION: THE DEAD HAND OF PRIVILEGE 251 II. ATTORNEYS ETERNAL 255 A. Early Statements of the Rule 255 B. Judicial Consensus In the Latter Twentieth Century [...]
Attorney-client privilege was held by the Supreme Court to extend beyond death in 1996, albeit only ratifying centuries of accepted practice in the lower courts and England before them. But with the lawyer's client dead, the natural outcome of such a rule is that privilege--the legal enforcement of secrecy--will persist forever, for only the dead client could ever have waived and thus end it. Perpetuity is not traditionally favored by the law for good reason, and yet a long and broad line of precedent endorses its application to privilege. The recent emergence of a novel species of privilege for psychotherapy, however, affords an opportunity to take a fresh look at the long-tolerated enigma of eternity and the imprudence of thoughtlessly importing it to the newest addition to the family of privileges. Frankly, humanity has always deserved better than legalisms arrogating to the inscrutability of the infinite.