The Department of Justice has recently used wiretaps in a host of investigations of businessmen, public officials and professionals. For example, it has used bugging devices to intercept the conversations of a former U.S. congressman, hedge fund managers, proprietary traders, stockbrokers and a criminal defense attorney. Indeed, senior lawyers at the Securities and Exchange Commission have warned that those on Wall Street “now must rightly consider whether their conversations are under surveillance” and have warned that “there are a lot of people who are nervous, and they should be. You should wonder if your phone is being tapped.”1
As the government uses wiretaps to investigate professionals, businessmen and public officials, the kind of targets who consult with lawyers on a regular basis, it becomes more likely that it will intercept privileged communications. This article discusses the issues that arise when the government intercepts attorney-client communications, describes what the government can and cannot do in intercepting conversations with lawyers, and provides tips for practitioners in challenging wiretaps that have picked up such conversations.
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