Privacy of Lawyer-Client Communications In Danger: The Growing Need for Greater Protections of Communications Between Attorney and Client

A couple of weeks ago, the American Bar Association (ABA) wrote the National Security Agency (NSA) about several concerns that lawyers all over the United States have (regardless of whether or not they are members of the ABA) regarding news that the NSA collecting confidential communications between an American law firm and its client, with no one bothering to let the law firm or its client know about the eavesdropping.

Chicago Law Firm’s Communications With Its Client Overheard by Australian Spy Agency and the NSA

Apparently, the federal agency obtained the law firm communications from the Australian Signals Directorate’s surveillance of the Indonesian government, which Australia’s agency shared with the NSA. In a story by James Risen and Laura Poitras, the New York Times first reported that one of many Edward Snowden revelations from his time as an NSA contractor is that Australia eavesdropped on Indonesia’s privileged communications with its American law firm (presumed by many to be Chicago’s Mayer Brown but not confirmed by the NYT in their story) and then shared what they had heard with the National Security Agency.

It was only through the Edward Snowden disclosures that the law firm, its client, much less the American public and the American Bar Association learned of the transgression.

The ABA warns the NSA in its correspondence that:

“The attorney-client privilege is a bedrock legal principle of our free society and is important in both the civil and criminal context. It enables both individual and organizational clients to communicate with their lawyers in confidence, which is essential to preserving all clients’ fundamental rights to effective counsel. The privilege also encourages clients to seek out and obtain guidance to conform their conduct to the law, facilitates self-investigation into past conduct to identify shortcomings and remedy problems, and enables lawyers to fulfill their ethical duties to their clients, all of which benefit society at large.”

The ABA also writes the NSA that the agency should not be trying to discover communications between American lawyers and their clients because these are privileged, confidential, and protected communications under American jurisprudence and that should the NSA come across any such attorney-client communication, the proper course of action is to take the steps necessary to protect it. Included in the ABA letter is a request for the NSA to provide its policies to do this — and the ABA asks whether any such policy was followed regarding the Australian eavesdropping of the Indonesian communication with its American legal counsel.

Read the American Bar Association letter to the National Security Agency here.

Another Example of the NSA Listening in on Privileged Lawyer Client Communications

The ABA letter isn’t addressing a single fluke or glitch in lawyer-client protections. From the Guardian (and the Nation) comes a story where attorney Robert Gottleib discovered that all his communiations with his client, Adis Medunjanin, including phone chats where Medunjanin initially contacted Gottlieb’s law office in mid-2009, telling Gottlieb that he was worried that he was under investigation by law enforcement and might need a lawyer. (He was arrested in January 2010 on charges of attempting to bomb the NYC subway.)

In other words, this story has eavesdropping of a lawyer-client relationship even before the attorney-client agreement was signed.

Robert Gottleib later discovered, in a secure room of the Brooklyn federal district courthouse, that ALL of his phone conversations with his client (42 in all) had been recorded by the NSA, from their first chat through Medunjanin’s indictment on January 7, 2010.

Can Clients Feel Safe That Their Communications With Their Lawyer Are Safe From Eavesdroppers? Maybe Not.

These two examples of the government spying on lawyer-client communications are far from the only ones that have been exposed in the past few years. The concern now is not whether or not law enforcement in its various forms (state or federal, police or agency) is listening into communications between lawyers and their clients but instead how best to protect clients from this very real possibility.

For instance, the ABA now offers a Continuing Legal Education (CLE) course entitled “The Ethical Implications of NSA Surveillance for Lawyers”which includes a discussion on making client communications safe from surveillance. And law firms are being encouraged to buy “cyber liability” coverage to protect themselves from liability should their communications get hacked.

Recently, a study was published in the Yale Law Journal that explained how incredibly cheap it is for law enforcement to track someone’s cell phone. Those men in vans out on the street listening into phone conversations across the street that you see in movies and TV shows? No need in real life: according to the Yale study, that kind of “covert car” operation costs almost $300 an hour while having someone at a desk back at the home office with some computer savvy can use the latest technology to track the victim’s cell phone for literally pennies: the Yale researchers price it at four cents an hour ($0.04/hour).

Of course, this study deals with cell phone tracking a person’s location and not listening into the specific phone communications; however, it’s a cheap technological step from locating the cell phone’s present location and accessing its data.

CNET already reports on how private individuals can buy software to snoop on someone’s phone for fifty bucks, it’s being marketed to parents to monitor their teenagers and to spouses who want to catch their husbands or wives cheating.

How Can Lawyers Protect Their Clients – and Potential Clients Looking for Representation?

I will be answering this question insofar as steps my law firm is taking in a separate article very soon.