Attorney's are afraid to represent clients because the US Govt. may be monitoring their communications.

The Supreme Court showed Monday that it is genuinely troubled that the govenment, carrying on a sweeping program of wiretaps seeking to track terrorism activity, may be putting lawyers in a serious professional and ethical bind as they represent individuals potentially caught up in that eavesdropping. It was not immediately clear, though, whether that worry was deep enough to lead the Court to give those attorneys a right to sue to challenge the constitutionality of the global surveillance that seems to be tracking Americans’ conversations, too.

Although the government’s top lawyer in the Court, Solicitor General Donald B. Verrilli, Jr., argued that no one should be allowed in court to contest this program unless they can show that the government’s potential overhearing of sensitive legal conversations is close to a certainty, several of the Justices seemed wary of making it that difficult to bring a challenge when it is entirely likely that such monitoring has occurred, or will occur. Indeed, some of the Justices — especially Justice Ruth Bader Ginsburg — were clearly put off by the prospect that no one would ever be able to sue, not even lawyers who had actually cut back on how they represent their clients out of fear of being monitored.

The ninth Justice, Anthony M. Kennedy at one point appeared to be convinced that the government was, in fact, making full use of what he called the “wide-ranging power” to expand the global eavesdropping under expansive changes enacted by Congress in 2008. “It is hard to think that the government is not using all of its powers to protect the country,” Kennedy said, suggesting that the challengers might well be right that the expanded program was so broad that it was actually picking up many sensitive conversations that might not have been monitored in the past.

And, Kennedy added, a lawyer who was representing an individual who might be targeted as a potential terrorist would actually “engage in malpractice” if that attorney did not take steps to protect conversations with the client or with the client’s family members from being monitored. Picking up on Justice Kagan’s repeated comments about lawyers’ ethical obligations to their clients, Kennedy appeared tempted to conclude that lawyers had, in fact, already suffered professional harm that might be sufficient to give them “standing” to sue to challenge the program.

Jameel Jaffer, the American Civil Liberties Union lawyer representing the lawyers, journalists, and human rights researchers who are attempting to sue to challenge the expanded surveillance, sensibly sought to drive home the point of harm to those groups’ professional interests, by citing specific examples of how they had curtailed their work in the face of a “reasonable risk” that, if they did not take such steps, the government would be eavesdroppiing on critical telephone calls, e-mails, and other communications with sources overseas. Justice Kagan strongly encouraged him to lay out those specifics to make his case stronger.

http://www.scotusblog.com/2012/10/argument-recap-sensitive-to-lawyers-dilemma/