Government Surveillance of Attorney-Client Communications: Invoked in the Name of Fighting Terrorism

Posted: 24 Sep 2003

See all articles by Ellen S. Podgor

Ellen S. Podgor

Stetson University College of Law

John Wesley Hall



This essay provides a critical analysis of Attorney General Ashcroft's Order permitting the government to monitor attorney-client conversations in prison. It provides a summary of the Order, the responses to the Order, and discusses ongoing litigation that contests the Order. The Essay also provides, as background, the contextual setting that allows for monitoring under existing provisions in Title III and FISA. After examining the constitutional issues emanating from Ashcroft's Order permitting attorney-client monitoring in prison, there is a discussion of the implications to the Attorney-Client and Work Product Privileges. Of particular focus is the ethical responsibilities of counsel when maintaining contact with a client when monitoring may be occurring. The Essay considers the importance of finding an appropriate balance between civil liberties and national security, but maintains that the Attorney General should not be permitted to disregard constitutional rights, the attorney-client privilege and the ethical responsibilities of attorneys, claiming that these measures are necessary to fight terrorism.

JEL Classification: K14

Suggested Citation

Podgor, Ellen S. and Hall, John Wesley, Government Surveillance of Attorney-Client Communications: Invoked in the Name of Fighting Terrorism. Georgetown Journal of Legal Ethics, Vol. 17, No. 1. Available at SSRN:

Ellen S. Podgor (Contact Author)

Stetson University College of Law ( email )

1401 61st Street South
Gulfport, FL 33707
United States
727 562 7348 (Phone)


John Wesley Hall

Independent ( email )

1202 Main St
Suite 210
Little Rock, 72202-5057
501-371-9131 (Phone)
501-378-0888 (Fax)


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