November 11, 2014
Recent reports reveal that the British intelligence agencies have been engaged in monitoring of privileged attorney-client communications for a period of several years. That surveillance apparently continues today, and it poses a significant threat to the confidentiality of sensitive client information.
British intelligence organizations MI5, MI6, and GCHQ have reportedly had government authorization for a period of years to collect privileged electronic communications and documents associated with lawyers and legal representation of clients. The reports also indicate that the intelligence agencies have shared the collected materials with individuals and organizations outside of the British government.
Reportedly, in legal cases involving the British government, privileged electronic materials collected by the intelligence agencies have been made available to counsel representing the British government and its interests. Such sharing of the materials appears to constitute a direct and serious breach of attorney-client privilege and legal ethical obligations.
Early reports on this conduct have focused on surveillance of British lawyers and those representing British clients. It should be noted, however, that this surveillance may also have been directed against lawyers outside of the United Kingdom and their clients. British intelligence organizations have greater latitude to monitor communications involving non-British citizens, thus it seems reasonable to assume that they capture privileged communications involving lawyers and clients outside of the U.K., as well.
Also note that because of the special information sharing relationship established between the U.K. and several other nations, including the United States, it is possible that privileged materials collected from attorneys by British intelligence are now being used by the N.S.A. and intelligence organizations in other countries including Canada, Australia, and New Zealand. The information sharing agreements among the governments could result in widespread international access to privileged client communications.
These revelations from the U.K. suggest that intelligence organizations are ignoring well-established and widely recognized principles of confidentiality, privacy, and non-disclosure. Attorney-client privilege is a fundamental element of effective legal representation which has long been recognized and respected. In today’s world of electronic surveillance, it is however, apparently under direct and serious threat. This threat has the potential to undermine the effectiveness and integrity of legal systems in the U.K. and in other countries.
Lawyers and the organizations that represent them should actively oppose the type of widespread electronic surveillance of confidential materials now apparently routinely conducted by British intelligence and perhaps by intelligence organizations in other countries. Fundamental principles necessary to sustain fair and effective legal representation must be protected in the age of widespread electronic surveillance.