^{_{The John Adams Court House, Boston, Massachusetts. Photo credit: Massachusetts Judicial Branch}}

By Jessie Rossman, staff attorney

Although the media is largely focused on the NSA’s surveillance programs right now, lesser noticed Little Brothers at the state and local level are also seeking access to our communications and private records. As Massachusetts’ highest court, the Supreme Judicial Court (SJC) has recognized, these local intrusions raise similarly serious constitutional concerns.

Just this week, in Preventative Medicine Associates v. Commonwealth, SJC-11252, the SJC emphasized that judicial supervision is necessary to help protect against the serious constitutional concerns raised by the Commonwealth’s broad search of a defendant’s emails.

In PMA, the Attorney General used a search warrant to obtain over 80,000 emails from the indicted defendants’ email accounts. Some of those emails contained attorney-client privileged information. Acknowledging that this search seriously threatened the attorney-client relationship, the Court held that “judicial supervision is essential where the Commonwealth seeks to search the emails of an indicted defendant.”

Moreover, the SJC determined that constitutional protections against unreasonable searches require such searches to include procedures expressly designed to prevent a breach of the attorney-client privilege. Judicial approval of these procedures “is necessary because the harm to the defendant could be irreparable if the Commonwealth viewed privileged materials, even if only by accident,” the Court wrote. PMA reflects the SJC’s determination that the courts’ role as gatekeepers to protect against prosecutorial abuses must remain robust in our technologically advanced world.

When a prosecutor searches a client’s or an attorney’s records, it not only implicates privilege concerns, but also imperils the attorney-client relationship and threatens the defendant’s constitutional right to counsel. That is why judicial oversight of such searches is critical. This logic informed an amicus brief filed this week by the ACLU of Massachusetts in another case, this one before a Massachusetts Superior Court.

In Commonwealth v. Forlizzi, the state Attorney General issued a grand jury subpoena for over four years of bank records for the defendant’s attorney, Bernard Grossberg. In response, the bank produced over 1,500 pages of documents. The Attorney General did not give attorney Grossberg advance notice or seek court approval before issuing this incredibly broad subpoena. Massachusetts ethics rules require judicial approval before prosecutors “subpoena an attorney.” The SJC adopted this rule given its fear that such subpoenas could create conflicts of interests between defendants and their lawyers, potentially divert the lawyer’s resources away from helping the client, and make defendants hesitate before communicating fully and truthfully with their lawyers.

The Attorney General’s subpoena of a defense attorney’s bank records triggers these same concerns. Our amicus brief therefore argues that the state ethics rule requires prior judicial approval before obtaining these records. Massachusetts has a long history of protecting against this kind of intrusion into the attorney-client relationship. We hope that the Superior Court’s ruling reflects this tradition and prevents these kinds of subpoenas from being issued in secret.

The theme of these cases is this: There may be times where, based on a proper showing of need, and with appropriate safeguards in place, a prosecutor can obtain certain limited records that implicate the attorney-client relationship. However, prior judicial approval in such circumstances is absolutely necessary, because only an impartial gatekeeper can ensure that this drastic measure is used rarely, narrowly, and only when absolutely necessary.