UIA Co-Sponsors ABA Panel on Wiretapping of Attorney-Client Privileged Communications
By Jerome Roth
President of the US National Committee of the UIA
Munger, Tolles & Olson
San Francisco, California, USA
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On Saturday, August 9, the UIA co-sponsored with the Section of International Law of the American Bar Association (ABA) a special Showcase panel debate of international bar leaders about wiretapping of attorney-client privileged communications under the laws of various jurisdictions, including the US, France and the UK. The panel formed part of the ABA’s annual meeting in Boston.
The panel was moderated by UIA President Stephen L. Dreyfuss and included speakers from the US – ABA President James Silkenat and UIA US National Committee President Jerry Roth, who helped organize the event -- as well as the President of the French Bar Council and UIA former President Jean-Marie Burguburu; the President of the Law Society of England Wales Andrew Caplen; and the President of the European Bar Council (CCBE) and UIA member Aldo Bulgarelli. The panel speakers compared and contrasted the requirements imposed under various legal systems for wiretapping generally and monitoring of privileged conversations in particular. Among other issues, the discussion focused on recent news events including the tapping by the NSA’s Australian counterpart of communications between a US law firm and its Indonesian government client regarding trade issues; and the high profile tapping of former French President Sarkozy and his attorney Thierry Herzog in connection with a criminal investigation, with the monitored conversations leading to their indictment based on entirely unrelated criminal charges. There was a particular focus on the question of whether advance approval of wiretapping privileged communications was required from an independent judge as opposed to a prosecutor or investigating magistrate.
Stephen Dreyfuss emphasized throughout the panel the critical importance of the attorney-client privilege; the need for independent judicial assessment of the tapping of privileged communications; and the obligation of lawyers to help the public understand the significance of the protection of the privilege, especially because of the perception that the privilege serves to shield from disclosure potentially significant information.
ABA President James Silkenat reviewed the steps the ABA has taken to encourage the US government including the NSA to provide protections for attorney-client privileged communications in the context of national security surveillance. Jerry Roth explained the differing standards for law enforcement versus national security wiretapping in the US and noted that, while authorization of a judge was clearly required in the former context, recent amendments to the Foreign Intelligence Surveillance Act raised serious questions about the degree of judicial oversight of wiretapping to obtain foreign intelligence, including of attorney-client communications. Jean-Marie Burguburu addressed the controversy in France generated by the tapping of the former president and his lawyer and the fact that the eavesdropping was authorized by an investigating magistrate in connection with an unrelated investigation. He also raised the issue of the sufficiency of evidence that the lawyer was involved in misconduct that was available to investigators prior to the tapping itself.
Andrew Caplen of the UK Law Society decried the fact that legislation appeared to have been rushed through the British parliament with virtually no debate in order to authorize wire-tapping without exceptions for privileged communications. And Aldo Bulgarelli, President of the CCBE, explained the various steps being taken by the European Parliament and Commission (and to a lesser extent the Council) to address the issue of protecting attorney-client communications in a time of rapidly changing technology and both government and private encroachment, particularly in light of recent revelations by Edward Snowden.
The debate was well-received by the audience which included former ABA President Michael Greco who called for more concerted action by the world’s bar organizations on the topic. And the session was closed by remarks by UIA President Dreyfuss regarding the foundational role played by the attorney-client privilege in the world’s legal systems and the need to guard it even when public sentiment was concerned with increased disclosure based on national security concerns.