Ethics

It seems like it was argued a decade ago but it was only last spring. As quoted in tomorrow's issue of the NY Law Journal:

"Attorneys, journalists and human rights organizations have standing to challenge amendments to the Foreign Intelligence Surveillance Act they claim gives the executive branch unbridled authority to monitor their communications with people overseas, the U.S. Court of Appeals for the Second Circuit ruled yesterday."

I (and others) submitted an affirmation (or declaration or affidavit, I forget) for the ACLU but District Judge Koetl rejected my opinion (ignored it, in fact) and rejected the lawyer's standing argument that relied on it. T

he appeal was heard by Judges Calabrese, Lynch and Sack. Judge Lynch wrote the opinion. I ventured no view on standing itself - a legal issue -  but took the position that the government's broad powers would ethically prevent lawyers from having electronic communications of substance with their overseas clients, severely limiting their ability to represent them. In turn, the ACLU lawyers argued that this was enough to confer standing (injury in fact). 

The court accepted the description of the lawyers's confidentiality duty but said it would decide for itself if the law would unduly impede on a lawyer's ability to do his or her job consistent with the duty. That's a correct conclusion. The effect of the law on the government's ability to seize the professional conversations is a legal question. 

Here are a few more fair comment paragraphs from the Journal. 

"Reversing a lower court, the Second Circuit said the groups have standing to sue over §702 of the act, which was added to FISA, 50 U.S.C. §1881a, by the FISA Amendments Act (FAA) of 2008 to create new procedures for authorizing electronic surveillance against non-U.S. individuals outside the United States.

"The reason, the court said in the case of Amnesty International USA v. Clapper, 09-4112-cv, was that attorneys, journalists, human rights groups have alleged a 'reasonable fear of future injury and costs incurred to avoid that injury.'"

I haven't yet had a chance to read the whole opinion but the gist of the report tells me it will be important to this narrow but critical area of law.