DRAFT 1 Wiretapping of Attorney-Client Conversations: How Can Professional Secrecy be Protected? August 9, 2014

DRAFT Background: The Issue  Several recent high-profile matters around the world have involved government interception of attorney-client privileged communications (ACPCs), usually through wiretaps.  Such interceptions gives rise to serious concerns about protection of the privilege which must be weighed against the government’s interest in law enforcement/national security.  They go to the heart of the importance and value of the privilege to a democratic society and the rule of law.  The concerns are magnified in the United States in light of expanded interception powers of the federal government in national security cases under FISA.  Concerns also persist in other countries. In France, for example, former president Sarkozy and his lawyer were recently indicted on corruption charges based on interceptions of their privileged calls. 2

DRAFT “Minimization” Procedures 3  Under Title 3 governing law enforcement wiretaps, the government must "minimize the interception of communications not otherwise subject to interception." 18 U.S.C. §§ 2518(4), (5).  § 2518(10)(1)(i) provides for suppression of communications that are "unlawfully intercepted.“  Wiretap orders usually contain provisions for:  Avoiding interception/recording of ACPCs  Sealing and segregation of inadvertent interception/recording of ACPCs  But communications in furtherance of a crime are not considered privileged  Including where the attorney is suspected of participating in wrongdoing

DRAFT NSA Minimization of Foreign Calls :  Applies where US person talking to non-US person  Section 702 of FISA:  “As soon as it becomes apparent that a communication is between a person who is known to be under criminal indictment in the United States and an attorney who represents that individual in the matter under indictment (or someone acting on behalf of the attorney), monitoring of that communication will cease and the communication will be identified as an attorney-client communication in a log maintained for that purpose. The relevant portion of the communication containing that conversation will be segregated and the National Security Division of the Department of Justice will be notified so that appropriate procedures may be established to protect such communications from being used in any criminal prosecution, while preserving foreign intelligence information contained therein. Also all proposed disseminations of information concerning US person attorney-client privileged communications must be reviewed by the NSA office of general counsel prior to dissemination.” 4

DRAFT Note limitations : 5  Relates only to person under criminal indictment  Only to US, not foreign, indictment  Not criminal investigation/complaint  Only to portion of ACPC related to indicted case  Allows for recording of ACPC in any event  Allows for use of ACPC for foreign intelligence in any event  Requires procedures to avoid use only in criminal case but not for other purposes – civil, administrative, economic?  Procedures to be developed by DOJ – court review?  Anticipates “dissemination”  NSA OC must review only if US person  No indication of standards/outcome of NSA OC review

DRAFT The Approach: Anaylze the Variables  Source of Protection of the Attorney-Client Communication  Constitutional? Statutory? Doctrinal? Ethical? Other?  Basis for the Interception:  Statutory Scheme? Executive action? Minimization procedures?  Level of interception  Monitoring only  Recording  Use  For intelligence only?  For court proceedings?  When communication is recognized to be potentially ACPC:  Stop monitoring?  Stop recording?  Segregate? 6

DRAFT Analyze the Variables  Basis for overcoming ACPC:  Is the attorney suspected of wrongdoing?  What level of evidence necessary? Mere suspicion, probably cause, etc.  Court approval needed in advance? Approval by DOJ or its equivalent?  Can the communication itself be used to establish the wrongdoing?  Does the ACPC relate to the matter under investigation or to some other?  Does the communication relate to a criminal matter?  Should this matter? Civil/transactional advice OK to intercept?  Does it have to be under indictment or investigation/complaint suffices?

DRAFT Analyze the Variables  What is the minimization procedure in the court order, if any?  Minimization  Stop monitoring/recording altogether?  Stop recording but continue monitoring?  Stop monitoring but continue recording?  If continue recording, segregate for later review?  By whom?  Under what circumstances?  For what purposes?  Does nationality of the client or attorney matter?  Is a foreign client or a foreign attorney entitled to lower level of protection?  Use of data  Delete names/identifying info of all individuals? Of US Citizens?  No use of ACPC except for national security?  Metadata? Can that be used separately even if related to ACPCs?  Fact of call, length, identity of parties, surrounding circumstances, frequency, etc. 8

DRAFT Lawyer’s Ethical Obligation? 9  Given that ACPC’s may be intercepted under some circumstances, including under NSA regime, does that affect the lawyer’s ethical obligation to maintain confidentiality and privilege?  Some have argued that lawyers must be aware of the risks and take steps to avoid interception  If they do so, are they at risk of being accused of interference with an investigation/obstruction?  If they do not do so, are they potentially liable to their clients?

DRAFT US situation  Feb ’13 Snowden document indicated Australian Signals Directorate (counterpart to NSA) offered NSA intercepted conversations:  Between US law firm and its Indonesian government clients  Relating to trade advice in connection with trade talks with US  NSA/ASD have not indicated if ACPC information was actually shared  ABA revised ethical rules in 2012:  Rule 1.6(c): 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.  Supreme Court rejected challenge to interception of international calls including by lawyers based on lack of standing, Clapper v. Amnesty International USA (2013) (Alito, J.) 10

DRAFT French situation: Sarkozy Case  Government tapped conversations of former President Sarkozy and his lawyer for months seeking evidence related to Libya/Khadafi scandal  Taps were requested of judge by investigating magistrate – questions raised about whether judge was independent  Instead government claims it found evidence that Sarkozy/lawyer were inducing a high-court judge to get preliminary information about upcoming court decision in an unrelated criminal matter in exchange for helping judge get plum assignment  Indictments for corruption were recently issued against Sarkozy, attorney, and judge  The government claims there was evidence of wrongdoing by Sarkozy’s attorney before interception but has not identified it.  The conduct has been condemned by the French National Bar Council as a violation of attorney-client “secret professionnel” and French penal code 11