1 Wiretapping of Attorney-Client Conversations:
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1 Wiretapping of Attorney-Client Conversations:

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Presentation on theme: "1 Wiretapping of Attorney-Client Conversations:"— Presentation transcript:

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Wiretapping of Attorney-Client Conversations: How Can Professional Secrecy be Protected?

August 9, 2014

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Background: The Issue

Several recent high-profile matters around the world have involved government interception of attorney-client privileged communications (ACPCs), usually through wiretaps.Such interceptions gives rise to serious concerns about protection of the privilege which must be weighed against the government’s interest in law enforcement/national security.They go to the heart of the importance and value of the privilege to a democratic society and the rule of law.The concerns are magnified in the United States in light of expanded interception powers of the federal government in national security cases under FISA.Concerns also persist in other countries. In France, for example, former president Sarkozy and his lawyer were recently indicted on corruption charges based on interceptions of their privileged calls.

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“Minimization” Procedures

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Under Title 3 governing law enforcement wiretaps,

the government must "minimize the interception of communications not otherwise subject to interception." 18 U.S.C. §§ 2518(4), (5).

§ 2518(10)(1)(

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) provides for suppression of communications that are "unlawfully

intercepted.“

Wiretap orders usually contain provisions for:

Avoiding interception/recording of ACPCs

Sealing and segregation of inadvertent interception/recording of ACPCs

But communications in furtherance of a crime are not considered privileged

Including where the attorney is suspected of participating in wrongdoing

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NSA Minimization of Foreign Calls :

Applies where US person talking to non-US person Section 702 of FISA:“As soon as it becomes apparent that a communication is between a person who is known to be under criminal indictment in the United States and an attorney who represents that individual in the matter under indictment (or someone acting on behalf of the attorney), monitoring of that communication will cease and the communication will be identified as an attorney-client communication in a log maintained for that purpose. The relevant portion of the communication containing that conversation will be segregated and the National Security Division of the Department of Justice will be notified so that appropriate procedures may be established to protect such communications from being used in any criminal prosecution, while preserving foreign intelligence information contained therein. Also all proposed disseminations of information concerning US person attorney-client privileged communications must be reviewed by the NSA office of general counsel prior to dissemination.”

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Note limitations:

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Relates only to person under criminal indictment

Only to US, not foreign, indictment

Not criminal investigation/complaint

Only to portion of ACPC related to indicted case

Allows for recording of ACPC in any event

Allows for use of ACPC for foreign intelligence in any event

Requires procedures to avoid use only in criminal case but not for other purposes – civil, administrative, economic?

Procedures to be developed by DOJ – court review?

Anticipates “dissemination”

NSA OC must review only if US person

No indication of standards/outcome of NSA OC review

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The Approach: Anaylze the Variables

Source of Protection of the Attorney-Client CommunicationConstitutional? Statutory? Doctrinal? Ethical? Other?Basis for the Interception: Statutory Scheme? Executive action? Minimization procedures?Level of interceptionMonitoring onlyRecordingUseFor intelligence only?For court proceedings?When communication is recognized to be potentially ACPC:Stop monitoring?Stop recording?Segregate?

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Analyze the Variables

Basis for overcoming ACPC:

Is the attorney suspected of wrongdoing?

What level of evidence necessary? Mere suspicion, probably cause, etc.

Court approval needed in advance? Approval by DOJ or its equivalent?

Can the communication itself be used to establish the wrongdoing?

Does the ACPC relate to the matter under investigation or to some other?

Does the communication relate to a criminal matter?

Should this matter? Civil/transactional advice OK to intercept?

Does it have to be under indictment or investigation/complaint suffices?

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Analyze the Variables

What is the minimization procedure in the court order, if any?MinimizationStop monitoring/recording altogether?Stop recording but continue monitoring?Stop monitoring but continue recording?If continue recording, segregate for later review?By whom?Under what circumstances?For what purposes?Does nationality of the client or attorney matter?Is a foreign client or a foreign attorney entitled to lower level of protection?Use of dataDelete names/identifying info of all individuals? Of US Citizens?No use of ACPC except for national security?Metadata? Can that be used separately even if related to ACPCs?Fact of call, length, identity of parties, surrounding circumstances, frequency, etc.

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Lawyer’s Ethical Obligation?

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Given that ACPC’s may be intercepted under some circumstances, including under NSA regime, does that affect the lawyer’s ethical obligation to maintain confidentiality and privilege?

Some have argued that lawyers must be aware of the risks and take steps to avoid interception

If they do so, are they at risk of being accused of interference with an investigation/obstruction?

If they do not do so, are they potentially liable to their clients?

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US situation

Feb ’13 Snowden document indicated Australian Signals Directorate (counterpart to NSA) offered NSA intercepted conversations:Between US law firm and its Indonesian government clientsRelating to trade advice in connection with trade talks with USNSA/ASD have not indicated if ACPC information was actually sharedABA revised ethical rules in 2012:Rule 1.6(c): A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.Supreme Court rejected challenge to interception of international calls including by lawyers based on lack of standing, Clapper v. Amnesty International USA (2013) (Alito, J.)

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French situation: Sarkozy Case

Government tapped conversations of former President Sarkozy and his lawyer for months seeking evidence related to Libya/Khadafi scandalTaps were requested of judge by investigating magistrate – questions raised about whether judge was independentInstead government claims it found evidence that Sarkozy/lawyer were inducing a high-court judge to get preliminary information about upcoming court decision in an unrelated criminal matter in exchange for helping judge get plum assignmentIndictments for corruption were recently issued against Sarkozy, attorney, and judgeThe government claims there was evidence of wrongdoing by Sarkozy’s attorney before interception but has not identified it.The conduct has been condemned by the French National Bar Council as a violation of attorney-client “secret professionnel” and French penal code

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