From time to time, I have been asked questions about whether lawyers needed to be doing anything (or even could do anything) to try to better guarantee protections of client communications and maintain privilege and confidentiality in the world after the news started to come out about just how broad the NSA’s surveillance operations appeared to be.
Having heard lots of opinions on the issues, I will admit that beyond sticking my fingers into my ears and saying “la la la, I can’t hear you,” my most intellectually honest response has been the hope that one or more aspects of the program would, in the long run, be ruled to be illegal. Some breaking news today out of the Second Circuit Court of Appeals makes for a positive development in this regard.
While technology has been constantly changing, the standard ethical guidance from the ABA dating back even as far as 1999 and continuing today in the language found in the Comment to ABA Model Rule 1.6(c) has consistently been that communication platforms with clients could be used as long as “the mode of transmission affords a reasonable expectation of privacy.” And, along the lines, the fact that someone could gain access has not meant a lawyer could not communicate using such means and that this was a particularly defensible position if, for example, a third-party access the information would be violating the law.
Admittedly, this ruling has to do only with phone records collection which while certainly an issue isn’t the only issue that attorneys concerned about impact on privilege and confidentiality of such practices may have. But it is a positive development and allows folks like me who have been clinging to hope that the potential for an ultimate conclusion that the practices are illegal will mean that lawyers are no more expected to do anything extraordinary to prevent such access than they would be expected to guarantee that someone would not break into their house and steal the contents of their briefcase.