In Re the Investigation of the Death of Miller

This case involves the attorney-client privilege and raises the primary question of whether, in the context of a pretrial criminal investigation, there can be a viable basis for the application of an interest *319 of justice balancing test or an exception to the privilege which would allow a trial court to compel disclosure of confidential communications where the client is deceased, an issue of first impression for this Court.

On 2 December 2000, Eric D. Miller (Dr. Miller) died at Rex Hospital in Raleigh, North Carolina, as a result of arsenic poisoning. Investigation by law enforcement officials established the following: Dr. Miller was a post-doctoral research scientist and was married to Ann Rene Miller (Mrs. Miller). On the evening of 15 November 2000, Dr. Miller went bowling at AMF Bowling Center in Raleigh, North Carolina, with several of Mrs. Miller’s co-workers. While at the bowling alley, Dr. Miller partially consumed a cup of beer given to him by Mrs. Miller’s co-worker Derril H. Willard (Mr. Willard). Dr. Miller commented to those present that the beer had a bad or “funny” taste.

On 16 November 2000, Dr. Miller was hospitalized at Rex Hospital in Raleigh with symptoms later determined to be consistent with arsenic poisoning. Five days later, Dr. Miller was transferred to North Carolina Memorial Hospital in Chapel Hill, North Carolina, where he remained until discharge on 24 November 2000. Dr. Miller was physically unable to return to work and remained at home under the care of Mrs. Miller and his parents. Dr. Miller slowly regained his physical strength until the morning of 1 December 2000, when he became violently ill and was again hospitalized. On 2 December 2000, Dr. Miller died from arsenic poisoning.

Within one week of Dr. Miller’s death, law enforcement officials interviewed all of the persons present at the bowling alley the night Dr. Miller consumed the suspect beer, with the exception of Mr. Willard. The police were unable to interview Mr. Willard. Mrs. Miller was interviewed on the day of her husband’s death and stated that she had no idea why anyone would have poisoned Dr. Miller. Shortly after the autopsy was completed on Dr. Miller’s body, it was cremated at the direction of Mrs. Miller. All of the investigators’ subsequent requests to interview Mrs. Miller were rejected.

During the course of the investigation, law enforcement officials concluded that Mrs. Miller was involved in a relationship with her coworker, Mr. Willard. Investigators subpoenaed telephone records for Mrs. Miller’s home, office, and cellular phones for a period of time before the initial hospitalization of Dr. Miller until the day he died. An analysis of telephone records showed several calls between Mr. *320 Willard and Mrs. Miller, with a total of 576 total minutes of conversation. The evidence also showed an increase in the frequency and duration of these telephone calls immediately before and after the incident which occurred at the bowling alley. In addition, numerous e-mail messages between Mrs. Miller and Mr. Willard were found on Mrs. Miller’s computer. During interviews with Yvette B. Willard (Mrs. Willard), the wife of Mr. Willard, investigators learned that Mr. Willard had acknowledged his romantic involvement with Mrs. Miller.

Shortly after Dr. Miller’s death, Mr. Willard sought legal counsel from criminal defense attorney Richard T. Gammon (respondent), who, according to an affidavit of Mrs. Willard, advised Mr. Willard that he could be charged with the attempted murder of Dr. Miller. Within days after his meeting with respondent, Mr. Willard committed suicide. Mr. Willard left a will naming Mrs. Willard as the executrix of his estate.

On 20 February 2002, the State filed a “Petition in the Nature of a Special Proceeding” in Superior Court, Wake County, requesting that the trial court conduct a hearing and, if needed, an in camera examination to determine whether the attorney-client privilege should be waived or whether compelled disclosure of communications between respondent and Mr. Willard was warranted for the “proper administration of justice.” On the same day, upon consideration of the petition and affidavit of Mrs. Willard filed therewith, the Honorable Donald W. Stephens, Senior Resident Superior Court Judge, entered an order requiring respondent to respond and appear before the Wake County Superior Court for a hearing on the petition. Respondent filed a motion to dismiss the petition asserting that the court lacked jurisdiction, which motion was denied.

On 7 March 2002, after a hearing, the trial court entered an order granting the State’s petition and requiring respondent to provide the trial court with a sealed affidavit containing information relevant to the murder investigation into the death of Dr. Miller that was obtained from his attorney-client relationship with Mr. Willard. The order provided that the trial court would conduct an in camera review of the information contained in respondent’s affidavit to determine if the interest of justice required disclosure of the information to the State. On 13 March 2002, the trial' court entered an order staying compliance with the 7 March 2002 order pending appeal. The trial court’s order designated the matter as immediately appealable. Respondent filed a notice of appeal to the Court of *321 Appeals. On 27 June 2002, this Court allowed the parties’ joint petition for discretionary review prior to determination by the Court of Appeals.

In essence, this case presents the question of whether, during a criminal investigation, there can be a legal basis for the application of an interest of justice balancing test or an exception to the attorney-client privilege which would allow a trial court to compel the disclosure of confidential attorney-client communications when the client is deceased. The State asserts basically two propositions in support of disclosure: (1) that a deceased client’s personal representative may waive the confidentiality of the communications, and (2) that in the interest of justice a trial court has the inherent authority to hear the State’s petition and to apply a balancing test to determine by in camera review whether any disclosure should be made.

Respondent asserts that the trial court first erred in denying his motion to dismiss on the ground that the court has no jurisdiction to hear this proceeding because of the manner in which it was instituted by the district attorney. Respondent contends that the only proper procedure for presenting this issue was before a grand jury, where, upon the assertion of the privilege, the issue would have to proceed further to a judge of the superior court for resolution. N.C.G.S. § 15A-623(h) (2001). We turn first to this consideration.

The parties agree that the State has initiated this matter as a cause in the nature of a special proceeding, N.C.G.S. § 1-2 (2001); N.C.G.S. § 1-3 (2001), and we note that while this action was not commenced in strict accord with the usual process as set forth in the North Carolina General Statutes, N.C.G.S. § 1-394 (2001); N.C.G.S. § 1A-1, Rule 3 (2001), it was initiated in the proper forum for special proceedings, the superior court, N.C.G.S. § 7A-246 (2001). Jurisdiction presupposes the existence of a court that has “control over a subject matter which comes within the classification limits designated by the constitutional authority or law under which the court is established and functions.” Jones v. Brinson, 238 N.C. 506, 509, 78 S.E.2d 334, 337 (1953); see also Perry v. Owens, 257 N.C. 98, 101-02, 125 S.E.2d 287, 290 (1962); State v. Hall, 142 N.C. 710, 713, 55 S.E. 806, 807 (1906). Subject matters of privilege and protected information, such as the Fifth Amendment privilege against self-incrimination and issues arising out of discovery motions, are subjects which are routinely addressed within the jurisdiction of the superior court.

*322 Although this proceeding was not initiated in strict accord with statutory procedures as set forth in N.C.G.S. § 1A-1, Rule 3, or by convening an “investigative grand jury,” N.C.G.S. § 15A-622(h) (2001), our common law, as reflected throughout its development, demonstrates a practical flexibility and ingenuity to accommodate exigent circumstances where required in the interest of justice. This flexibility, as a virtual rule of necessity, will permit the superior court to assume jurisdiction in proceedings of an extraordinary nature that do not fit neatly within statutory parameters. This premise is well stated by former Judge (later Chief Justice) Burley Mitchell in the following language:

Within the guidelines of our Constitution, the legislature is charged with the responsibility of providing the necessary procedures for the proper commencement of a matter before the courts. Occasionally, however, the proscribed procedures of a statutory scheme fail to embrace the unanticipated and extraordinary proceeding such as that disclosed by the record before us. In similar situations, it has been long held that courts have the inherent power to assume jurisdiction and issue necessary process in order to fulfill their assigned mission of administering justice efficiently and promptly. We believe that this is one of those extraordinary proceedings and that our rules of procedure should not be construed so literally as to frustrate the administration of justice.

In re Albemarle Mental Health Ctr., 42 N.C. App. 292, 296, 256 S.E.2d 818, 821, disc. rev. denied, 298 N.C. 297, 259 S.E.2d 298 (1979).

With respect to the inherent power of the superior court to issue an order in such circumstances, this Court has stated: “It is sufficient to note that situations occasionally arise where the prompt and efficient administration of justice requires that the superior court issue an order of the type sought here by the State.” In re Superior Court Order, 315 N.C. 378, 380, 338 S.E.2d 307, 309 (1986). We thus conclude that in the instant case, pursuant to the petition filed by the State, the superior court had jurisdiction to hear and consider the merits of the State’s petition.

Before turning to the trial court’s determination and the merits of the State’s position, we consider the collateral issue of whether the attorney-client privilege survives the client’s death.

*323 While this Court has never specifically addressed this issue, this Court has presumed that the attorney-client privilege extends after a client’s death by acknowledging the existence of the “testamentary exception” to the privilege. In re Will of Kemp, 236 N.C. 680, 73 S.E.2d 906 (1953). In recognizing the “testamentary exception,” this Court has stated:

“ [I]t is generally considered that the rule of privilege does not apply in litigation, after the client’s death, between parties, all of whom claim under the client; and so, where the controversy is to determine who shall take by succession the property of a deceased person and both parties claim under him, neither can set up a claim of privilege against the other as regards the communications of deceased with his attorney.” 70 C.J., Witnesses, section 587.

Kemp, 236 N.C. at 684, 73 S.E.2d at 910; see also 1 Kenneth S. Broun, Brandis and Broun on North Carolina Evidence § 129, at 129 (5th ed. 1998) (the testamentary exception to the attorney-client privilege applies “[w]hen, after the client’s death, there is litigation, such as a will contest, in which all parties claim under the client”).

The United States Supreme Court has also recognized the testamentary exception and has assumed that, based upon this exception, the attorney-client privilege continues after a client’s death. Swidler & Berlin v. United States, 524 U.S. 399, 405, 141 L. Ed. 2d 379, 385 (1998) (citing Glover v. Patten, 165 U.S. 394, 407-08, 41 L. Ed. 760, 768 (1897)). The rationale for permitting disclosure under these circumstances is that it furthers the client’s intent. Id.

Moreover, many jurisdictions have explicitly held that the attorney-client privilege survives the death of the client. See, e.g., State v. Macumber, 112 Ariz. 569, 544 P.2d 1084 (1976); Wesp v. Everson, 33 P.3d 191 (Colo. 2001); Mayberry v. State, 670 N.E.2d 1262 (Ind. 1996); District Attorney for Norfolk Dist. v. Magraw, 417 Mass. 169, 628 N.E.2d 24 (1994); McCaffrey v. Estate of Brennan, 533 S.W.2d 264 (Mo. App. 1976); Taylor v. Sheldon, 172 Ohio St. 118, 173 N.E.2d 892 (1961); Curato v. Brain, 715 A.2d 631 (R.I. 1998); South Carolina State Highway Dep’t v. Booker, 260 S.C. 245, 195 S.E.2d 615 (1973); see also 1 John W. Strong, McCormick on Evidence § 94, at 378 (Kenneth S. Broun et al. eds., 5th ed. 1999) [hereinafter McCormick on Evidence]. Consistent with these authorities and In re Will of Kemp, we hold that the attorney-client privilege does survive the death of the client.

*324 Turning now to the State’s first contention, the State asserts that Mrs. Willard, as executrix of Mr. Willard’s estate, effectively waived “any attorney-client privilege that may have existed” by submitting an affidavit purporting to waive the privilege on Mr. Willard’s behalf. The State specifically argues that, as executrix of Mr. Willard’s estate, Mrs. Willard was empowered to waive the privilege pursuant to two sections of the North Carolina General Statutes, section 32-27 (powers which may be incorporated by reference in a trust instrument) and section 28A-13-3 (powers of a personal representative or fiduciary). N.C.G.S. §§ 32-27, 28A-13-3 (2001). The trial court held that the estate of Mr. Willard waived the attorney-client privilege based upon the fact that Mr. Willard did not specifically take actions to preclude his estate from waiving the privilege upon his death.

Mr. Willard died leaving behind a will which named Mrs. Willard as executrix of his estate. Article VII of Mr. Willard’s will sets forth the powers granted to the executor. Among those powers are (1) the power to “deal with any property” in the estate, including the power to make tax elections; and (2) all of the powers contained in N.C.G.S. § 32-27. Whether N.C.G.S. §§ 32-27 and 28A-13-3 apply to the instant case is a matter of statutory construction.

The primary goal of statutory construction is to “ensure that the purpose of the legislature is accomplished.” Woodson v. Rowland, 329 N.C. 330, 338, 407 S.E.2d 222, 227 (1991); see also State ex rel. Hunt v. North Carolina Reinsurance Facil., 302 N.C. 274, 288, 275 S.E.2d 399, 405 (1981). “ ‘[W]here the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must give it its plain and definite meaning, and are without power to interpolate, or superimpose, provisions and limitations not contained therein.’ State v. Camp, 286 N.C. 148, 152, 209 S.E.2d 754, 756 (1974) (quoting 7 Strong’s North Carolina Index 2d Statutes § 5 (1968)).” Hlasnick v. Federated Mut. Ins. Co., 353 N.C. 240, 244, 539 S.E.2d 274, 277 (2000); see also Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990).

Section 32-27(23) of the North Carolina General Statutes, titled “Litigate, Compromise or Abandon,” empowers the executor “[t]o compromise, adjust, arbitrate, sue on or defend, abandon, or otherwise deal with and settle claims in favor of or against the estate.” N.C.G.S. § 32-27(23) (emphasis added). The State argues that the authority to “defend” implies the authority to gain knowledge of the decedent’s recent confidential communications to his attorney when pertinent to the defense of the estate.

*325 In the instant case, no claim has been inferred, threatened or made by or against Mr. Willard’s estate. As a result, we do not interpret Mrs. Willard’s actions as those taken to “defend” Mr. Willard’s estate. This case comes before us as a “Petition in the Nature of a Special Proceeding,” instituted by the State in an effort to gain alleged attorney-client privileged information held by respondent. Because there is no claim by or against Mr. Willard’s estate, there is no basis for any defense of the estate, and we hold that N.C.G.S. § 32-27(23) is inapplicable.

In addition to subsection (23), there are thirty-three additional powers enumerated in N.C.G.S. § 32-27 which were granted to Mrs. Willard pursuant to Mr. Willard’s will. The clear wording of these provisions reveal that they are in no way applicable, and we thus find that none of these remaining powers grant an executrix the power to waive the decedent’s attorney-client privilege. “Under the doctrine of expressio unius est exclusio alterius, when a statute lists the situations to which it applies, it implies the exclusion of situations not contained in the list.” 1 Evans v. Diaz, 333 N.C. 774, 779-80, 430 S.E.2d 244, 247 (1993); see also Campbell v. First Baptist Church, 298 N.C. 476, 482, 259 S.E.2d 558, 563 (1979). We find no basis under any concept of statutory construction to support the State’s position on this point and thus hold that N.C.G.S. § 32-27 does not empower an executor or executrix to waive a decedent’s attorney-client privilege.

The State further asserts that Mrs. Willard had the power to waive the attorney-client privilege pursuant to the power granted to the personal representative of a decedent’s estate in N.C.G.S. § 28A-13-3(a). Specifically, the State argues that because N.C.G.S. § 28A-13-3(a)(15) confers upon the executor the power to handle litigation on behalf of the estate, the executor also possesses, by necessary implication, the *326 power to waive confidentiality when the information to be gained may be critical to litigation involving the estate.

Section 28A-13-3 of the North Carolina General Statutes contains the “[p]owers of a personal representative or fiduciary.” This section empowers a personal representative

to perform in a reasonable and prudent manner every act which a reasonable and prudent man would perform incident to the collection, preservation, liquidation or distribution of a decedent’s estate so as to accomplish the desired result of settling and distributing the decedent’s estate in a safe, orderly, accurate and expeditious manner as provided by law, including but not limited to the powers [set out in this subsection],

N.C.G.S. § 28A-13-3(a) (emphasis added). Among the thirty-three specific powers N.C.G.S. § 28A-13-3 grants an executor or executrix, subsection (a)(15) confers the power “[t]o compromise, adjust, arbitrate, sue on or defend, abandon, or otherwise deal with and settle claims in favor of or against the estate.” N.C.G.S. § 28A-13-3(a)(15). The State contends that this provision empowers Mrs. Willard, as executrix, to waive the attorney-client privilege on. behalf of Mr. Willard.

In this regard, Mrs. Willard, acting as executrix of Mr. Willard’s estate, reopened the estate “to handle legal matters” two days before the State filed its petition. At that time, the estate had been closed; it contained no assets; and as far as the record shows, there were no claims pending for or against the estate. Therefore, Mr. Willard’s estate was not at risk of incurring civil liability. Because there were no assets in the estate, there was nothing for the executrix to collect, preserve, liquidate, or distribute. See N.C.G.S. § 28A-13-3(a).

The State nevertheless argues that Mrs. Willard filed her affidavit in an effort to protect the estate from civil liability arising from possible actions by the Miller family and that her action therefore fell within the purview of N.C.G.S. § 28A-13-3(a). Specifically, the State contends that because the Miller family released the estate from liability, “ [i]t defies logic that the Millers acted unilaterally and without consideration. The most compelling logic is that the Millers’ release was an agreed upon response to the waiver by Mrs. Willard.” The State thus contends that the only way the estate of Mr. Willard could protect itself from the possibility of a civil lawsuit by the Miller family was to reopen the estate and execute an affidavit purporting to *327 waive the privilege as a condition precedent to the Millers’ release of liability.

While enticing, we do not find this argument persuasive in light of the facts established in the record as a whole. We find it more plausible that the estate was not reopened in consideration of the Millers’ release of civil liability since Mrs. Willard’s affidavit was executed one week before the release was obtained. In addition, the actual document which purports to release Mr. Willard’s estate from liability specifically states that such release was made “in consideration for the sum of one dollar.” Nowhere in the document does it mention the affidavit executed by Mrs. Willard. As previously discussed, we find it relevant that Mr. Willard’s estate had no assets at the time Mrs. Willard reopened it and executed her affidavit.

Accordingly, we find that the State’s attempts to establish that the filing of Mrs. Willard’s affidavit was for the benefit of Mr. Willard’s estate are not persuasive. To the contrary, the record more strongly suggests that Mr. Willard’s estate was reopened in order to enable Mrs. Willard to submit an affidavit to further the ongoing criminal investigation, and that Mrs. Willard’s decision to waive the attorney-client privilege was not for a purpose related to the preservation of Mr. Willard’s estate. Further, by again applying the doctrine of expressio unius est exclusio alterius, we hold that N.C.G.S. § 28A-13-3(a) is inapplicable to the instant case. We therefore conclude that because Mr. Willard’s will did not expressly grant the executrix the power to waive his attorney-client privilege, or any powers similar thereto, Mrs. Willard does not have the power to waive Mr. Willard’s attorney-client privilege.

In its second basic contention, the State asserts that the trial court properly accepted the premise of a balancing test. The State argues that the information sought from respondent is not available from any other source, that the relief granted the State is narrow in that an in camera review by the trial court must occur before the State has access to any of the information, and that disclosure under such circumstances and procedure will cause no substantial harm to the attorney-client privilege and all that such privilege embodies.

After weighing the State’s arguments for the public’s interest in justice in the instant case against respondent’s arguments for the public’s interest in protecting the privilege, and before conducting an in camera review, the trial court concluded:

*328 [T]he State’s and the public’s interest in determining the identity of the person or persons responsible for the death of Eric Miller outweigh the public interest in protecting . . . the attorney-client privilege.

The public’s interest in protecting the attorney-client privilege is no trivial consideration, as this protection for confidential communications is one of the oldest and most revered in law. The privilege has its foundation in the common law and can be traced back to the sixteenth century. Lloyd B. Snyder, Is Attorney-Client Confidentiality Necessary?, XV Geo. J. Legal Ethics 477, at 480 (Spring 2002); 8 John H. Wigmore, Evidence § 2290, at 542 (John T. McNaughton ed. 1961) (citing Berd v. Lovelace, 21 Eng. Rep. 33 (1577)). The attorney-client privilege is well-grounded in the jurisprudence of this State. State v. McIntosh, 336 N.C. 517, 523, 444 S.E.2d 438, 441 (1994); State v. Tate, 294 N.C. 189, 192, 239 S.E.2d 821, 824 (1978); Carey v. Carey, 108 N.C. 267, 270, 12 S.E. 1038, 1038 (1891). “[W]hen the relationship of attorney and client exists, all confidential communications made by the client to his attorney on the faith of such relationship are privileged and may not be disclosed.” McIntosh, 336 N.C. at 523, 444 S.E.2d at 441 (citing State v. Ballard, 333 N.C. 515, 428 S.E.2d 178, cert. denied, 510 U.S. 984, 126 L. Ed. 2d 438 (1993)); see also State v. Murvin, 304 N.C. 523, 531, 284 S.E.2d 289, 294 (1981); State v. Van Landingham, 283 N.C. 589, 601, 197 S.E.2d 539, 547 (1973); Guy v. Avery Cty. Bank, 206 N.C. 322, 322, 173 S.E. 600, 601 (1934); Hughes v. Boone, 102 N.C. 137, 159, 9 S.E. 286, 292 (1889).

There are exceptions to this general rule of application to all communications between a client and his attorney; however, the facts of this case do not fall under any one of the well-established exceptions. See, e.g., McIntosh, 336 N.C. at 524, 444 S.E.2d at 442 (where uncontroverted evidence showed the defendant consulted with his attorney solely to facilitate his surrender, such communication relating to the surrender was not privileged); State v. Taylor, 327 N.C. 147, 152, 393 S.E.2d 801, 805 (1990) (when a client alleges ineffective assistance of counsel, the client waives the attorney-client privilege as to the matters relevant to the allegation); State v. Brown, 327 N.C. 1, 21, 394 S.E.2d 434, 446 (1990) (communications are not privileged when made in the presence of a third person not acting as an agent of either party); In re Will of Kemp, 236 N.C. at 684, 73 S.E.2d at 909-10 (the privilege is not applicable when an attorney testifies regarding the testator’s intent to settle a dispute over an estate).

*329 The rationale for having the attorney-client privilege is based upon the belief that only “full and frank” communications between attorney and client allow the attorney to provide the best counsel to his client. Upjohn Co. v. United States, 449 U.S. 383, 389, 66 L. Ed. 2d 584, 591 (1981); see also McIntosh, 336 N.C. at 523, 444 S.E.2d at 442. The privilege “ ‘rests on the theory that encouraging clients to make the fullest disclosure to their attorneys enables the latter to act more effectively, justly and expeditiously — benefits out-weighing the risks of truth-finding posed by barring full disclosure in court.’ ” Ballard, 333 N.C. at 522, 428 S.E.2d at 182 (quoting United States ex rel. Edney v. Smith, 425 F. Supp. 1038, 1046 (E.D.N.Y. 1976), aff’d without opinion, 556 F.2d 556 (2d Cir.), cert. denied, 431 U.S. 958, 53 L. Ed. 2d 276 (1977)).

In considering whether an attorney can be compelled to disclose confidential attorney-client communications, it is noteworthy that unlike other profession-related, privileged communications, the attorney-client privilege has not been statutorily codified. In article 7 of chapter 8 of our General Statutes, relating to competency of witnesses, the General Assembly has specifically addressed a method for disclosure of privileged communications. In N.C.G.S. § 8-53, the General Assembly has established the privilege for confidential communications between physician and patient, providing that confidential information obtained in such a relationship shall be furnished only on the authorization of the patient or, if deceased, the executor, administrator or next of kin of the patient. This statute further provides that “[a]ny resident or presiding judge in the district, either at the trial or prior thereto, or the Industrial Commission pursuant to law may, subject to [N.C.G.S. §] 8-53.6, compel disclosure if in his opinion disclosure is necessary to a proper administration of justice.” N.C.G.S. § 8-53 (2001). Our General Assembly has also provided this same disclosure procedure and basis in its creation of the privilege for communications between psychologist and patient (N.C.G.S. § 8-53.3 (2001)), in the school counselor privilege (N.C.G.S. § 8-53.4 (2001)), in the marital and family therapy privilege (N.C.G.S. § 8-53.5 (1999)), in the social worker privilege (N.C.G.S. § 8-53.7 (1999)), in the professional counselor privilege (N.C.G.S. § 8-53.8 (2001)), and in the optometrist-patient privilege (N.C.G.S. § 8-53.9 (2001)).

With respect to statutorily established privileges, we also find it notable that with other types of privileged communications, such as the clergyman privilege, the General Assembly has made these in essence absolute by not including any provision for a judge to “com *330 pel disclosure if in his opinion disclosure is necessary to a proper administration of justice.” N.C.G.S. § 8-53. See N.C.G.S. § 8-53.2 (2001) (no disclosure of information between clergymen and communicants); N.C.G.S. § 8-53.6 (2001) (no disclosure of information obtained by a therapist doing marital counseling in alimony or divorce actions). Significantly, our General Assembly has not seen fit to enact such statutory provisions for the attorney-client privilege, and we must look solely to the common law for its proper application. N.C.G.S. § 4-1 (2001).

With regard to case law, the State asserts that the rationale in Cohen v. Jenkintown Cab Co., 238 Pa. Super. 456, 357 A.2d 689 (1976), supports the application of a balancing test in the case sub judiee. In Cohen, the court concluded that the “interests of justice” required disclosure of a deceased client’s communications with his attorney. Id. at 461-64, 357 A.2d at 692-93. The court balanced the necessity of revealing the confidential communications against the possibility of harm to the client’s estate, reputation, or rights and interests. Id. at 464, 357 A.2d at 693. The rationale supporting the decision in Cohen was that the attorney-client privilege exists to aid in the “administration of justice,” and when this goal is frustrated by its application, the trial court can compel disclosure. Id. at 464, 357 A. 2d at 693-94.

In response to the State’s argument, respondent asserts that the United States Supreme Court’s decision in Swidler, 524 U.S. 399, 141 L. Ed. 2d 379, is virtually indistinguishable from the instant case. The Court in Swidler explicitly rejected the balancing test as applied to the attorney-client privilege in Cohen. Id. at 409, 141 L. Ed. 2d at 388. In Swidler, Vincent W. Foster, Jr. was the Deputy White House Counsel when the Office of Independent Counsel investigated whether various crimes were committed during the 1993 dismissal of several employees from the White House Travel Office. Id. at 4