Greetings from the frozen mid-West.
There has been some interesting commentary on the subject of the effect of computer and phone monitoring on military defense counsel’s ability to have privileged communications with their clients.
LeEllen Coacher, who is now on Judge Stucky’s staff at CAAF, wrote an interesting Air Force Law Review article that addressed that issue. See LeEllen Coacher, Permitting Systems Protection Monitoring: When the Government Can Look and What It Can See, 46 A.F. L. Rev. 155, *183-88 (1999).
The ABA has also issued a relevant ethics Formal Opinion. ABA Standing Committee on Ethics and Professional Responsibility, Formal Opinion No. 99-413, Protecting the Confidentiality of Unencrypted E-Mail, Formal Opinion No. 99-413 (March 10,k 1999).
These sources would tend to suggest that DOD monitoring does not defeat the privilege, especially where DOD has regulations limiting the permissible secondary disclosure of privileged communications. Does anyone have authority suggesting that the attorney-client privilege would be defeated in this context?