So the other morning, well before sunrise, I’m lying there in bed wide awake and trying not to think of anything that will keep me awake. No, that didn’t work out real well.
I am of course a lawyer. In fact I am a country lawyer. My clients are area pepole and businesses, their families, and so forth. Not exactly the book of business that a large city firm is going to bring me in as a partner to acquire, as I think I’ve finally got the wife to understand after almost 20 years of this. But my clients like anyone else are tremendously keen on their own privacy, and are entitled to be that solicitous of it.
Back in the late-middle 1990s, there was a formal ethics opinion released (can’t recall whether it was our state ethics weenies or the ABA) on the propriety of communicating with clients via e-mail. The opinion allowed that it was acceptable, and the stated reason for that conclusion was that there was no reason to suppose that e-mail was any materially less secure than the U.S. postal system.
Errrmmm, fellows: That assumption is no longer warranted. The few things that have been disclosed about the surveillance capabilities are frightening enough. The one thing of which we can be sure is that the Director of National Intelligence is willing to lie to Congressional committees. So are the senior staff of the IRS. So is the U.S. Attorney General. So is the former Secretary of State. And so forth. We must therefore assume that we have not been told the full extent of what they can do, what they have been doing, what they have been doing with it, and to whom that information has been further disseminated and for what purposes.
Thus, yesterday I sent the following letter to the chairman of our state ethics weenie commission:
I am writing you in your capacity as chair of the Board of Professional Responsibility to request a formal ethics opinion from the board in respect of the following questions:
Q: What duty does a lawyer in have to advise those of his clients with whom he communicates telephonically or via e-mail of the existence of federal domestic espionage programs under which undisclosed amounts and kinds of information and data is harvested from those communications by undisclosed agencies to be used for undisclosed purposes?
Q: In light of the known existence of domestic espionage programs of undisclosed intent and purpose, may a lawyer ethically continue to communicate with his client other than face-to-face or via paper mail, with or without disclosure of the risk of espionage?
Formal guidance on the subject for the practicing bar in <my state> is necessary because recent revelations – which I must emphasize are very fragmentary – render incorrect the foundation of the board’s earlier formal opinion that electronic mail is a permissible form for attorney-client communications. That opinion expressly stated as its basis that there was no reason to assume that e-mails were any less secure than the United States Postal Service. While no doubt true at the time, no reasonable person can make that assumption after what has come to light in the past weeks.
I also emphasize that formal guidance from the Board is indispensable because as now appears to be indisputably the case, various agencies of the federal government are in fact willing to cooperate with each other in using the information each gathers for partisan political purposes. It is now conceded that the Internal Revenue Service targeted for adverse action an entire segment of the American political spectrum, and that at least some of the targets of its attentions were then subjected to otherwise-unexplained attentions from ostensibly unrelated federal agencies (e.g., the ATF and OSHA), or other divisions within the IRS itself, such as gift tax audits of donors disclosed on tax-exemption applications. It is likewise now known that the Service released to its political opponents confidential information in respect of an applicant for a tax-exempt ruling while the application was pending – a criminal offense.
Under such circumstances no reasonable person may assume that the contents of any communication which is subject to being monitored – as we now know e-mails and telephone calls to be – will not be harvested, disseminated beyond its announced user, and deployed in manners directly targeted at one or more of the specific parties to a communication, for the purpose of injuring that party’s interests. Protestations to the contrary by federal bureaucrats are not entitled to be believed, whether made under oath or not.
I must say that I have no reasonable expectation of hearing back from them, either personally or via actual action on their part.
In the meantime, I have added to my usual “please trash this if you’ve received it erroneously” and IRS Circular 230 notice e-mail “signature” the following:
Federal Domestic Espionage Warning. This e-mail may be routed over communications networks which are the subject of active, non-disclosed monitoring and recording by agencies of the United States government and/or its contractors under one or more programs which may or may not be authorized by statute and/or permissible under the U.S. Constitution. The nature and extent of information gathered through such espionage have not been disclosed, nor have been disclosed the purposes to which such information is put, nor have been disclosed the identities of any other agencies or entities to which such information is further disseminated.
At least they can’t accuse me of ignoring the issue.
[Update 05 Dec 13] Back when I sent my request to the ethics weenies, I received what is likely their standard-form reply (reminiscent of “send this bastard the bedbug letter” of railroading fame) that they’d take it up at their September, 2013 quarterly board meeting. It will surprise no one any more than it did me that I have yet to see any indication that they have engaged with the issue. And of course the extent and detail of the monitoring that has been revealed in the interim has only got more alarming. We now know, for example, that the NSA routinely shares information with law enforcement agencies, among them the DEA. So how, if you practice criminal law, especially federal criminal law, do you communicate with your clients? And if you practice immigration law? Or in fact if you practice any kind of law where you have a federal or state agency as the adverse party?