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Confidentiality issues grow as wiretapping knows no boundaries

Confidentiality issues grow as wiretapping knows no boundaries

By John Glynn

Leaders of several national and international bar associations, including ABA President James S. Silkenat, called for stronger coordination among lawyers to combat a growing sense of attacks on the fundamental attorney-client privilege.

Aldo Bulgarelli, president of the Council of Bars and Law Societies of Europe, Brussels, Belgium, recommended more formal “international collaboration between bar and law societies” to develop global standards governing governmental electronic surveillance as it relates to the relationship between lawyers and their clients.

At stake, he said, is “the trust of the clients” of lawyers, and such erosion could threaten the existence of a legal system and ultimately democracy in western nations.

Bulgarelli and Silkenat spoke Saturday at the ABA Annual Meeting in Boston at the panel, “Wiretapping of Attorney-Client Conversations: How Can Professional Secrecy be Protected?” The panel played off the recent revelations concerning the NSA obtaining wiretaps of U.S. law firms, as well as the leaking of French criminal investigators' wiretaps of conversations between former French President Nicolas Sarkozy and his personal lawyer.

These highly-publicized incidents have raised alarm in the international legal arena, and calls for stronger procedural safeguards and substantive solutions to protect one of the most cherished principles of the legal profession in the United States and the European Union — the right of attorney-client confidentiality.

In his opening remarks, Silkenat recounted an exchange of letters and a subsequent meeting with top officials of the National Security Agency that resulted after disclosures that Australian intelligence services shared with the NSA information from wiretaps of an American law firm representing Indonesia in trade disputes. Silkenat said such federal practices could “undermine the legal profession” in the United States.”

“So far we’ve been impressed with the responses we’ve gotten from the NSA and others, but it is an ongoing discussion,” Silkenat said, noting that the ABA better understands “how complex the fact patterns can be on this.”

Jerome C. Roth, an attorney at Munger, Tolles & Olson in San Francisco, observed the U.S. situation is in flux as he outlined the evolution of attorney-client confidentiality in criminal and national security cases, even before the establishment of the Foreign Intelligence Surveillance Act of 1978. This, he said, is “obviously an issue of incredible importance to lawyers.”

Jean-Marie Burguburu, president, Conseil National des Barreaux in Paris, outlined the eavesdropping on the conversations between Sarkozy and his attorney as well as the legal context in France. It is okay, he said, for such surveillance but only if the “lawyer is suspected of a criminal offense” carrying at least two years in jail.

Andrew Caplen, president of the Law Society of England and Wales in London, suggested the bars of the affected nations work with their governments to develop something akin to a “digital Magna Carta” that would serve as a “digital bill of rights in each country.” That concept has been promoted by Sir Timothy John Berners-Lee, an English computer scientist credited with inventing the World Wide Web.

The panel was moderated by Stephen L. Dreyfuss, president of the international lawyers group UIA. He suggested the confidentiality privilege between a lawyer and a client is a “first defense against tyranny.”

The ABA Section of International Law sponsored the panel.

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