The Duty of Confidentiality in the Surveillance Age

Abstract

Confidentiality is the cornerstone of the lawyer client relationship. The duty of confidentiality helps to build a trusting relationship between lawyer and client that encourages the client to be as open with and provide as much information to his or her lawyer as is necessary for proper representation. Confidentiality also is important to the attorney-client privilege, because the privilege only protects communications made in confidence. This is why, when a lawyer wants to talk with a client, he or she must ensure that the only persons listening to the conversation are members of the legal representation team or other lawyers from the firm, unless the client has specified otherwise.

As has been discussed elsewhere, the entirely Internet-based nature of cloud computing complicates the lawyer’s obligation to maintain confidentiality. Recent disclosures about the National Security Agency’s (NSA) surveillance programs have made that obligation infinitely more complex. Indeed, the documents leaked by Edward Snowden reveal a surveillance apparatus so pervasive that it raises fundamental questions about whether lawyers can maintain confidentiality at all when communicating electronically. In light of evidence that NSA can intercept, decrypt, and retain nearly every type of electronic communication — and that it intercepts and retains a massive amount of domestic as well as foreign communications, sometimes including attorney-client communications — attorneys must now re-evaluate whether the use of cloud service providers can still be in line with the rules of professional conduct in their jurisdiction. Some attorneys, such as those working with terrorism suspects, have long been concerned that NSA surveillance compromises their ability to uphold their duty of confidentiality; last year, in Clapper v. Amnesty International USA, 133 S. Ct. 1138 (2013), the Supreme Court rejected this complaint for lack of standing. In recent months, however, this issue has received renewed nationwide attention as both The New York Times and The Nation have reported that the NSA or other agencies have intercepted and/or listened in on privileged communications.