NYC BAR LEADS NATIONAL GROUP OF BAR ASSOCIATIONS
IN SEEKING TO PREVENT THE NSA FROM UNLAWFULLY
WIRETAPPING LAWYER-CLIENT COMMUNICATIONS

Five bar associations, led by the Association of the Bar of the City of New York , are urging the U.S. Court of Appeals in Cincinnati to affirm a lower court ruling that permanently enjoined the National Security Administration’s warrantless surveillance program.

“The NSA surveillance program threatens to undermine a fundamental principle of a just legal system: That . . . persons accused by the government of wrongdoing have access to legal advice and that such legal advice can only be effective if lawyer-client communications are conducted in confidence uninhibited by fears that government agents are listening in,” the Association said in an amicus brief, filed on November 17 on behalf of itself and the bar associations of Los Angeles, San Francisco, Boston and Beverly Hills. The brief was prepared by Peter T. Barbur and Duane L. Loft of Cravath, Swaine & Moore.

In the wake of a newspaper report that the NSA had been engaged in warrantless wiretapping of American citizens since 2001, the President announced that he had authorized and would continue to authorize such surveillance so long as the perceived threat posed by al Qaeda and other terrorist organizations continued. This includes even communications between lawyers and their clients, communications that long had been protected by our laws under a “seal of secrecy.”

The NSA Program, argue the Bar Associations in a brief supporting the plaintiffs (led by the American Civil Liberties Union), chills those who perceive themselves as potential targets from seeking the advice of American counsel—a right that they enjoy by virtue of the First Amendment’s free speech clause and the Sixth Amendment’s guarantee of the effective assistance of counsel.

The Bar Associations also filed the brief to highlight the difficult ethical dilemma that lawyers now face since the details of the Surveillance Program were revealed, as they are torn between their duties to render thorough legal advice on the one hand, and the obligation to keep client secrets on the other.

The Bar Associations argued, “The NSA’s admitted practice of wiretapping communications in the name of national security—without a court order and pursuant to undisclosed standards that are never subjected to judicial scrutiny—chills a broad spectrum of constitutionally protected speech, including communications between attorneys and their clients.” The amicus brief supports the plaintiffs’ efforts to strike down the NSA Surveillance Program because “fundamental rights, including the right to counsel, are being impermissibly and unnecessarily undermined.”

About the Association
The New York City Bar Association (www.nycbar.org) was founded in 1870, and since then has been dedicated to maintaining the high ethical standards of the profession, promoting reform of the law, and providing service to the profession and the public. The Association continues to work for political, legal and social reform, while implementing innovative means to help the disadvantaged. Protecting the public’s welfare remains one of the Association’s highest priorities.

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