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LawBiz® TIPS – Week of April 22, 2014

LawBiz(r) newsletter

Last week was peaceful and warm in my neighborhood - a time for family gathering. I hope your holidays were likewise enjoyable. Cycling was a good part of our joy. My grandson took 4th place in a criterium race, and, for the first time in the 3 years since I was hit by a car, I rode two days consecutively and did some of my best riding. That means I'm recovering nicely. Any day I can ride like that is a good day.

My latest book, the 20th anniversary edition of The Attorney & Law Firm Guide to The Business of Law®, Third Edition (ABA 2014) was delivered to me by my publisher. I'm really excited that it's now available. We have the pre-publication offer open for only a short while longer (until May 1st) for those who want to take advantage of the 25% discount.

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Lawyer-Client Confidentiality: A Casualty of NSA Surveillance?

Lawyer-client confidentiality has long been a foundation of the law profession. However, that confidentiality may be at risk in our new surveillance-dominated society.

The front page of the Saturday, February 15, 2014, edition of the New York Times sported a headline that read, "Spying by N.S.A. Ally Entangled U.S. Law Firm." The article, written by James Risen and Laura Poitras, noted that, according to a top-secret document from famed whistle-blower Edward J. Snowden, a former National Security Agency (NSA) contractor, an American law firm was the latest victim of NSA spying. Specifically, the NSA and its international affiliates, as part of their global surveillance efforts, were monitoring talks between an American law firm and the Indonesian government, a client that the firm is representing in trade disputes with the United States. The article suggested that the firm was Mayer Brown, a Chicago-based law firm with a global practice.Law firms with clients overseas have become increasingly concerned that their "confidential communications" are and will be compromised by American surveillance. If this is the case, what is left of the rule and privilege of confidentiality?

This scenario can be interpreted either as paranoia or as one more invasion of American liberty. The sad fact is that we will probably never know. Obviously, the government will not tell us the truth, and it is unlikely that another Snowden will come along soon.

Unfortunately, the courts seem intent on ignoring this potential threat to legal confidentiality. In 2013, according to the New York Times article, the U.S. Supreme Court found that the idea of threatened lawyer-client confidentiality due to NSA monitoring was "speculative."

In medical terminology, sometimes the cure is worse than the disease. Has our government, under the veil of security and protection against terrorism, allowed our civil rights and liberties to be torn asunder? Is this cure worse than the disease?

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Lawyer-Client Confidentiality: A Casualty of NSA Surveillance?

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