After the Australian equivalent of the U.S. National Security Agency was found to have monitored communications between an American law firm and its overseas client earlier this year, the American Bar Association wrote to the NSA with grave concern for the potential threat that foreign surveillance may pose to the attorney-client privilege.
In his letter to the NSA, James Silkenat, the then-director of the ABA, expressed concern over the possibility of confidential communications being monitored by foreign governments and subsequently shared with the NSA and, in turn, with the U.S. government or third parties. Conceding the tantamount importance of protecting national security, Silkenat reminded the NSA of the importance of mitigating the potential for the improper dissemination of privileged communications by taking appropriate measures upon the inadvertent receipt of such information.
The concerns articulated by Silkenat echo the 2012 addition to Rule 1.6 of the ABA Model Rules of Professional Conduct. Pursuant to that addition, “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.” Although then-director of the NSA, Keith Alexander, replied to Silkenat’s letter with the assurance that privileged attorney-client communications would be accorded “appropriate protections,” the extent to which such communications are being collected and reviewed and the efficiency of the mitigation procedures in effect, if any, remain uncertain. According to Andrew Perlman, former chief reporter for the Ethics 20/20 Commission, attorneys should be reminded that Rule 1.6 requires “reasonable precautions,” the meaning of which depends upon the circumstances. In some situations, Perlman advised, meeting with a foreign client in person may be appropriate for compliance with the rule. Of great and continuing concern to the legal community is the fact that these reports could hinder clients’ free communication with their attorneys.
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