The attorney-client privilege is one of the cornerstones of our legal system. So sacred is it that not even the death of the client will work to unseal the lips of the attorney.
Months ago, there were reports that terror suspects held at Guantanamo had their right to the attorney-client privilege violated through eavesdropping by way of bugging devices made to look like smoke detectors. While the American Bar Association waged a complaint about what was going on at Gitmo, there is little doubt that no general public outcry emerged, and no outcry from the bar, because those having their rights violated were viewed as “terrorists.” The lack of outrage brings to mind that the lessons of Martin Niemöller’s poem First They Came . . . have not been learned:
First they came for the communists,
and I didn't speak out because I wasn't a communist.
Then they came for the socialists,
and I didn't speak out because I wasn't a socialist.
Then they came for the trade unionists,
and I didn't speak out because I wasn't a trade unionist.
Then they came for the Jews,
and I didn't speak out because I wasn't a Jew.
Then they came for the Catholics,
and I didn't speak out because I wasn't a Catholic.
Then they came for me,
and there was no one left to speak for me
So now we learn that it’s not just accused terrorists in military prisons who are the target of eavesdropping – it’s everyone. In the wake of the Boston Marathon bombing, one former FBI counterterrorism agent alleged on CNN that “all digital communications – meaning telephone calls, emails, online chats and the like – are automatically recorded and stored and accessible to the government after the fact.” For lawyers, this means that conversations between you and your client are being monitored and saved – by someone – somewhere – for future use. If the claims are to be believed, this means that your attorney-client privilege is being violated even if you don’t practice criminal law, even in your client isn’t accused of being a “terrorist” or even committing a crime, and even if there is no legitimate national security rationale to do so.
How we stop the practice? I don’t know but there is one thing we can do. It is the way that lawyers have shileded their clients for centuries. We can meet with our clients face to face when we know that the details of the conversation are of a scope and sensitivity that it goes beyond the facts of a lawsuit. As attorney’s we are duty-bound to guard the words of our clients, even if it seems the whole world is trying to listen. If this means eschewing phone and e-mail, so be it.