What Happened to the Attorney-Client Privileged Communication And What You Should Do About It. By Paul E. Kerson

Once upon a time, in a democratic country called the United States, in a State called New York, there were seven people in one’s life one could count on to keep  secrets: spouse, attorney, medical professional, clergy member, psychologist, social worker and rape crisis counselor. Library records were also to be kept confidential.

New York guarantees this to every one of our citizens, residents and visitors alike in Civil Practice Law and Rules (CPLR) Sections 4502, 4503, 4504, 4505, 4507, 4508, 4509 and 4510.  These statutes are a bulwark of freedom. It means a person can unburden himself or herself and not fear prosecution, embarrassment or intimidation. These statutes are a key factor in the physical and mental health of our people.

Washington, DC has the same attorney-client privilege set forth in the DC Rules of Professional Conduct, Rule 1.6.

Now comes something called the “National Security Agency,” a Federal Government entity paid for with our tax dollars that has clearly been designed to make us feel as insecure as possible.

The Feb. 15, 2014 edition of The New York Times reported the following article by reporters James Risen and Laura Poitras, “Spying by N.S.A. Ally Entangled U.S. Law Firm”. It seems that the Australian counterpart of the NSA, the Australian Signals Directorate (ASD), told SUSLOC (the Special US Liaison Office Canberra of the NSA) that it had intercepted communications between the Indonesian Government and its American law firm, Mayer Brown of Chicago, Ill.

It seems that the Indonesian Government is involved in a trade dispute with the US Government over trade in cigarettes and shrimp. At the World Trade Organization (WTO) in Geneva, Switzerland, the Indonesian Government is protesting a US Government ban on the sale of imported Indonesian clove cigarettes. The US Government, in turn, is protesting that Indonesia is selling shrimp at below-market prices.

Indonesia retained the Washington, DC office of Mayer, Brown to represent its interests adverse to those of the US Government at the WTO.

The Times interviewed Duane Layton, Esq. and Matthew McConkey, Esq. of the Washington office of Mayer Brown. Neither had any concrete evidence that they had been spied on by the Australian ASD or the US NSA. However, upon being informed that this was the case by The Times, Mr. Layton said, “I always wonder if someone is listening, because you would have to be an idiot not to wonder in this day and age.”

The Times found out about the US Government’s blatant violation of the DC Rules of Professional Conduct, Rule 1.6 and New York CPLR Section 4503 because of the allegedly “unlawful” revelations of Edward Snowden, a former NSA contractor. Snowden made a lot of NSA material public, and is now a “fugitive”.

So, the wise lawyer who wishes to uphold the integrity of our profession against an apparent policy of blatant US Government interference must now adopt the following stringent safeguards:

1. Do not discuss any sensitive matter with any client over the telephone or by fax.

2.  Do not put any confidential client information in any e-mail whatsoever.

3. Use sealed US Mail whenever a few days waiting time is permissible. (It almost always is. There is very little we do that absolutely must be delivered today. The rush for immediacy is because people have been reduced to the level of infants by “technology”.  It is still a felony for any Government agent or anyone at all to open U.S. Mail not addressed to them. See 18 U.S. Code Sec. 1708).

4. If the confidential communication must be there immediately, hire a messenger service you can trust.

5. If the confidential communication must be there tomorrow, use US Mail Next Day Delivery, Federal Express, UPS or other sealed overnight carrier.

6. Best of all, when discussing anything sensitive, have the client come into your office and close the door.

These measures must be taken at once. The Law Itself will not help us. The Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008 (FAA) permits the Federal Government to acquire “foreign” intelligence information by authorizing surveillance of individuals who are not “U.S. persons” who are reasonably believed to be “outside the U.S.” See 50 U.S. Code Sec. 1881a.

But what happens when such surveillance picks up attorney-client communications from inside the U.S. by American lawyers? The U.S. Supreme Court ruled 5-4 that this is perfectly okay. See Clapper v. Amnesty International, 133 S.Ct. 1138 (2013).  In Clapper, the U.S. Supreme Court reversed the U.S. Court of Appeals, 2nd Circuit, here in New York. See 638 F. 3d 118 (2d Cir. 2011).

Our Second Circuit gave us some hope:

“The plaintiffs’ uncontroverted testimony that they fear their sensitive electronic communications being monitored and they have taken costly measures to avoid being monitored – because we deem that fear and those actions to be reasonable under the circumstances of this case – establishes injuries in fact that we find are causally linked to the allegedly unconstitutional FAA. We therefore find that plaintiffs have standing to challenge the constitutionality of the FAA in federal court.” See 638 F. 3d at 150.

Sadly, the U.S. Supreme Court took this hope away 5-4.

What did Mayer Brown do?  The whole world now knows they allowed their most sensitive attorney-client communications to be monitored by the Federal Government. This is not exactly good for business.

Well, a firm of that size is not without resources. Two days after The Times broke this story of Federal Government trampling on the attorney-client privilege, Mayer Brown had this to say in the Feb. 17, 2014 edition of The Chicago Tribune:

“Mayer Brown takes data protection and privacy very seriously, and we invest significant resources to keep client information secure.” (See Kim Geiger, “Chicago-based law firm responds to report of NSA spying”. The Chicago Tribune,  Feb. 17, 2014

We in Queens County, New York have the most international clientele in the world. People reside in our county who were born in virtually every other country. And many have significant dealings in the “old country,” all 196 of them (unless Taiwan does not count, in which case there are 195).  They come to Queens County because we at Sutphin Boulevard (the Capital of the Universe) provide them with outstanding legal representation for whatever dispute they might find themselves in (among other reasons, but surely it is not the scenery).

U.S. Supreme Court to the contrary notwithstanding, we must redouble our efforts to live by and enforce CPLR Sec. 4503, the Attorney-Client privilege. Please follow what we should now call Duane Layton’s 6 Rules for the Protection of the Attorney-Client Privilege listed above. After all, as the first attorney whose confidential communications were revealed as hacked by the Federal Government, we are all well advised to follow his assessment of the condition we are now in due to Government abuse of “technology”: “I always wonder if someone is listening, because you would have to be an idiot not to wonder in this day and age.”

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