In an earlier blog post, I covered the effect of the NSA on the attorney/client relationship. Now the American Bar Association has woken up and is taking the matter seriously. Apparently, it took the revelations that the NSA was spying on an American law firm in order for the ABA to put on their super hero cape and type up a letter.
... In light of the ABA’s longstanding support for the privilege and the confidential lawyer-client relationship, we are naturally concerned by recent press reports alleging that confidential communications between an American law firm and a foreign government that it represented on trade issues may have been monitored and intercepted by another nation’s intelligence service and then shared with NSA. 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.” ...
The full letter to the NSA is here:
http://www.americanbar.org/content/dam/aba/uncategorized/GAO/2014feb20_…