We, as a people, hold certain relationships as special and in recognition of that, our legal system protects from compulsory disclosure the communications which take place in those relationships. This notion is an acknowledgment of certain core values. Whether the communications take place in a marriage, or with our mental health counselor, or our priest/pastor/rabbi, or our lawyer, we must have absolute faith that these communications will be completely private. Anything less will lead to less than fully candid discussions; anything else will lead to the erosion of the basic trust necessary for those relationships to thrive and be fully effective.
I could write all day about the importance of the each of those relationships and the necessity for protecting those communications. In fact, I could write all day for the need for a parent-offspring privilege; after all, I can’t think of any communication I treasure more than those with my children (perhaps because they are teenagers and our conversations are increasingly more infrequent).
All this is a prelude to what strikes me as the latest installment in a continuing governmental effort to erode the sanctity to the attorney-client relationship. On February 15, 2014, The New York Times reported that a “top-secret document, obtained by the former N.S.A. contractor Edward J. Snowden, shows that an American law firm was monitored while representing a foreign government in trade disputes with the United States.” This is incredibly disturbing — the United States government, through its Australian spaying partner, is knowingly monitoring communications between a law firm and its client regarding a dispute with the United States government – outrageous!
Let’s take a moment to review the events reported by The Times. Australia’s spy agency, the Australian Signals Directorate, notified the N.S.A., “that it was conducting surveillance of the talks, including communications between Indonesian officials and the American law firm, and offered to share the information” and “that ‘information covered by attorney-client privilege may be included’ in the intelligence gathering.”
The N.S.A. immediately cited the paramount importance of the attorney-client privilege and declined to accept the information, right? WRONG!
The Times reports that, “On behalf of the Australians, the liaison officials asked the N.S.A. general counsel’s office for guidance about the spying. The bulletin notes only that the counsel’s office “provided clear guidance” and that the Australian agency ‘has been able to continue to cover the talks, providing highly useful intelligence for interested US customers.’”
So let’s peek behind the curtain:
Australian Spy: Hey Joe, we are monitoring talks between the government of Indonesia and their American lawyers regarding their trade dispute with your country, you interested? By the way, this will include attorney-client communications.
American spy: Ooh, sounds like we may have use for that but I better check with our lawyers.
American spy: Hey, Crocodile, our lawyer says no problem; send us whatever you have – and thanks; we owe you.
Australian spy: You bet. It’s not every day that we get to provide you with “highly useful intelligence.” Say hello to Snowden for me; tell him we have shrimps on the barbie for him!
That’s it – end of story – a country of laws being governed by people with no regard for the law and its most basic principles and worst yet, no accountability.
Take a moment to contemplate the N.S.A.’s response to the very reasonable and important question of whether the information was provided to U.S. trade officials involved in the negotiations with Indonesia, “the N.S.A. declined to answer questions about the reported surveillance, including whether information involving the American law firm was shared with United States trade officials or negotiators. “
The most disheartening part of this story is how powerless we seem to be. The law firm involved, apparently more concerned with not losing business than protecting the sanctity of its communications with its clients, was reported in the ABA Journal as saying that it “takes data protection and privacy very seriously, and we invest significant resources to keep client information secure.” The ABA Journal goes on to report that “in the view of the Am Law Daily, ‘The statement is clearly aimed at reassuring the many international clients” that “their confidential information is safe.’” Seriously? That’s all you have to say? I must have missed the law school class where we were taught it was our duty to shy away from protecting our clients’ rights and championing their liberties.
Absent a lack of outrage, we are left with no stick and very little carrot. The ABA has written a letter to N.S.A.’s general counsel (presumably the very lawyer who okayed the spying in the first place) expressing its concern. We applaud the effort by the ABA and encourage others to follow suit. The concern was brilliantly and succinctly articulated by ABA President, James Silkenat in the letter, “The interception and sharing of attorney-client privileged communications by government agencies—or any third party—raises concerns, including chilling the full and frank discussion between lawyer and client that is essential for effective legal representation. Any government surveillance and interception of confidential communications between law firms and their clients threaten to seriously undermine and weaken the privilege, because as the U.S. Supreme Court noted in Upjohn Co. v. United States, 449 U.S. 383 (1981), ‘an uncertain privilege…is little better than no privilege at all.’”
No privilege at all – what a scary thought!