Attorney Mark Dubois ()

I got a call from a lawyer the other day. A colleague had been served with a search warrant for a client’s file. It appeared that the focus of the investigation may have been related to claims of fraud. When the lawyer objected that the file would necessarily contain communications between client and lawyer, the answer he received was that a lawyer working with/for the police “would review the file.” Oh, OK, I guess that solves the problem. Or maybe not.

I was thinking of this cavalier attitude towards the issues of confidentiality and privilege when I read that the National Security Agency or one of its cooperating partners had listened in on private attorney-client communications between a law firm and a foreign client.

It was reported that the agency’s Office of the General Counsel was consulted when issues of potential attorney-client privilege arose and could recommend steps to protect such information. Such steps “could include requesting that collection or reporting by a foreign partner be limited, that intelligence reports be written so as to limit the inclusion of privileged material and to exclude U.S. identities, and that dissemination of such reports be limited and subject to appropriate warnings or restrictions on their use.” Hmmm. Why am I not feeling that the feds understand this any better than our local boys in blue?

The American Bar Association weighed in on the NSA issue, but was characteristically cautious, sending a letter to the agency which noted that “having you further clarify the principles and policies in this area would be extremely helpful to the legal community.” That kind of advocacy makes you proud to be paying dues to the ABA.

A third problem I recently heard about was when lawyers working at a state law school were served with a freedom of information request for client information and materials. “Oh, don’t worry,” they were told when they raised the privilege issue, “the folks in compliance will take care of it.” Being better lawyers than the folks in compliance, the lawyers refused to comply.

We seem to have a troubled relationship with privilege and its broader corollary, confidentiality. Confidentiality is the ethical concept that covers just about everything related to lawyer-client communication. Privilege is an evidentiary concept that deals with compelled disclosure of otherwise confidential information in a court setting.

What search warrants, FOI requests, and NSA spying all have in common is a need for information and a recognition that sometimes larger social needs trump personal rights. But expecting these seekers to tempter their efforts enough to protect the privacy rights of those being examined is at best unrealistic and, at worst, an abandonment of our duties as professionals.

The Connecticut Supreme Court, in the recent Woodbury Knoll case, affirmed the lawyer’s duty to raise all “non-frivolous” objections to the disclosure of privileged or otherwise protected client information. This can be time-consuming and expensive, especially when there is no one to pay the lawyer’s bill for litigating the issue.

Our courts also give off mixed signals on this issue. In the most celebrated case, Ullman v. State, the Supreme Court adopted a “compelling need” balancing test. The matter involved compelling an attorney to testify as to what he discussed with his client, evidence that was crucial to the state’s attempt to prosecute the client on a claim of witness tampering. As with search warrants, spying and freedom of information, there were compelling public interests that required the client’s privacy to give way.

To his credit, the lawyer involved, New Haven Public Defender Tom Ullman, took the matter to the highest court before he cooperated. At the time, the gold standard was for a lawyer to refuse to cooperate, be found in contempt, and then appeal the contempt order. After Woodbury Knoll, the standard is easier. Now, a lawyer faced with an inquiry into privileged matters may seek interlocutory review using a writ of error.

This all raises the question of whether a lawyer served with a discovery request can simply rely on the promise that “someone downtown” will look at what is produced and take care of privilege and confidentiality issues. Some seek solace in the fact that Rule 1.6 allows a lawyer to comply with a court order related to discovery. But too many confuse subpoenas or FOI requests with court orders, something they clearly are not.

Yes, it would be a lot easier to leave these things to someone else such as the folks in compliance, but try as I may I cannot find anything in the rules, commentary, cases or commentators which allows us to do that.

Mark Dubois, the former chief disciplinary counsel in Connecticut, is now an attorney at the New London firm of Geraghty & Bonnano. He is also president-elect of the Connecticut Bar Association. The views expressed here are his own and not those of the CBA.