Ethics

There has been a lot of recent talk about the outsourcing of legal work, especially to India.  I have heard a variety of concerns about the trend, but one that I had not considered is that the United States government is permitted to examine electronic data that leaves the country.  This power raises the possibility that, when a lawyer sends a client's confidential information abroad, the government might view that information and use it against the client in some subsequent proceeding.  A recently filed lawsuit raises this very concern, ultimately seeking

declaratory judgment and equitable relief in order to  gain certainty about whether the electronic transmission of data from the United States to  Acumen India waives Fourth Amendment protection with respect to the data that is  electronically transmitted. It seeks this declaration knowing that foreign nationals who reside overseas lack Fourth Amendment protections.  It seeks this declaration having been informed, through published materials, that the United States Government engages in pervasive surveillance of electronically transmitted data wherein one party to the transmission is a foreign national residing overseas.

More here.

This concern sounds serious, but I'm not sure that the risks from outsourcing are any greater than they are from the many other ways confidential client information can end up in the wrong hands.  Before I could reach any conclusions, I'd need to know more about how great of a risk there really is.  I'd also need to know what the consequences are in the event that the government looks at privileged or confidential information.  For example, if the government reviewed privileged information as it left the country and the information was only relevant to some civil dispute between private parties, I would assume that the privilege would still apply in the civil proceeding.  So is the concern really about criminal proceedings or civil proceedings in which the government is involved?  Or am I missing the potential breadth of the problem?

Thanks to Bill Henderson for the original pointer.