The most recent Snowden revelation, as reported by the New York Times, has revealed that even law firms have become ensnared in the NSA’s ever-growing communications dragnet.
The top secret document, leaked by Edward Snowden, reveals that a US-based firm was targeted by the NSA over the period of time it represented Indonesia in trade talks with the US government. Controversial FISC court rulings grant the NSA permission to monitor the communications of Americans, even communications within the scope of attorney-client privilege, provided those communications are deemed to have intelligence value and are with foreigners.
Given these revelations, US-based lawyers and law firms conducting business internationally may need to reconsider the implications of ABA Model Rule 1.6c)
A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.
Whereas e-mail has previously been deemed by the ABA to, in most circumstances, to provide a “reasonable” level of security, in a post-Snowden era law firms should be viewing strong encryption for electronic communications and, where possible, old-fashioned face-to-face meetings, as a new normal for what constitutes “reasonable efforts” to maintain confidential communications.