Revelations on Saturday that an American law firm’s communications with a foreign government client were monitored by a National Security Agency ally may provide new impetus for the U.S. Supreme Court to revisit a 2013 decision that involved electronic surveillance law.
The justices, if they wish, have a vehicle for reconsidering their 5-4 decision in Clapper v. Amnesty International USA. The Center for Constitutional Rights last month filed a petition for review asking the high court to hear their challenge to surveillance by the NSA in light of Edward Snowden’s revelations about the extent of the surveillance program.
The petition, Center for Constitutional Rights v. Obama, was filed on behalf of the organization itself and its legal staff.
“We have always been confident that our communications—including privileged attorney-client phone calls—were being unlawfully monitored by the NSA, but Edward Snowden’s revelations of a massive, indiscriminate NSA spying program changes the picture,” said CCR Senior Attorney Shayana Kadidal in a statement last month. “Federal courts have dismissed surveillance cases, including ours, based on criteria established before Snowden’s documents proved that such concerns are obviously well-founded.”
The New York Times on Saturday reported that a top-secret document obtained by Snowden reveals that an American law firm’s communications with its client, the government of Indonesia, were monitored while the firm was assisting the foreign country in trade disputes with the United States.
The Australian counterpart to the NSA, according to the Times, notified the NSA that it was conducting surveillance of those communications and offered to share the information. The article suggested the law firm was Mayer Brown, which was then advising the Indonesian government on trade issues concerning cigarettes and shrimp.
Alex Abdo, a staff attorney with the American Civil Liberties Union’s National Security Project, said the spying revelation “confirms our fear that the NSA’s surveillance rules gives short shrift to the privacy of communications between lawyers and their clients.” Attorney-client communication, Abdo said in a written statement, “is sacred in our legal tradition and should not be wiretapped except in extraordinary circumstances.”
Duane Layton, a Mayer Brown partner in Washington who leads the firm’s government and global trade practice, told The Times he did not have any evidence that he or his firm had been under scrutiny by Australian or American intelligence agencies.
“I always wonder if someone is listening, because you would have to be an idiot not to wonder in this day and age,” Layton told the Times. “But I’ve never really thought I was being spied on.”
Mayer Brown said in a written statement that “there is no indication, either in the media reports or from our internal systems and controls, that the alleged surveillance occurred at the firm.” The law firm said it “takes data protection and privacy very seriously, and we invest significant resources to keep client information secure.”
Layton said that if his emails and calls with Indonesian officials had been monitored, the spies would have been bored, according to the Times. “None of this stuff is very sexy,” he said. “It’s just run of the mill.”
Layton led a team from the firm in the clove cigarette dispute, while another lawyer in the firm’s Washington office, Matthew McConkey, an international trade partner, had taken the lead on the shrimp issue until the United States dropped its claims in August, the Times reported.
Litigation over Indonesian clove cigarettes presented novel legal issues in the international trade arena—including when is one product “like” another product? Mayer Brown, representing Indonesia, won a significant ruling in 2012, in the appellate division of the World Trade Organization, over restrictions on the sale of flavored tobacco in the U.S.
Mayer Brown chairman Paul Theiss last week told NLJ affiliate Am Law Daily that revenue was up in the Americas, Europe and Asia, the firm’s three regions. In 2013, gross revenue reached $1.146 billion—up from $1.09 billion in the previous year. Mayer Brown’s profits per partner rose to $1.285 million—the highest ever for the firm.
“Over the last dozen years or so we’ve built a very nice global footprint to be able to serve the world largest financial institutions and other global companies,” Theiss said last week. “The growth that we’ve had in doing that has led to efficiencies in ways to operate as a single global firm.”
The Clapper case was brought by several groups, including lawyers, journalists and human rights organizations. They challenged a provision of the Foreign Intelligence Surveillance Act that permitted warrantless electronic eavesdropping of non-U.S. citizens outside of the United States.
On January 11, 2009, the Lancaster Sunday News published an extensive article entitled “Contested will is one for books” by Gil Smart, Associate Editor regarding a high-profile will contest underway in Lancaster County, PA.Lancaster Public Library under a Last Will executed approximately five years before his death in July, 2008.
He reported that a retired Lancaster County judge is challenging his late son’s bequest of potentially $500,000-$900,000 made to the
Thomas Bucher was found in his Columbia apartment July 20, , dead of a gunshot wound. His death, ruled a suicide, was a family tragedy.
Now, nearly six months later, his father, a retired Lancaster County senior judge, is in the midst of a tug-of-war over Thomas Bucher’s estate, which could total $900,000 and was bequeathed not to Bucher family members — but to the Lancaster Public Library.
Wilson Bucher — a former district attorney who later served on the Lancaster County bench as judge for more than 30 years — has challenged his son’s will in orphan’s court, saying that Thomas Bucher was under an “insane delusion” when he revised his will in 2003 to disinherit members of his family, and give everything to the library. * * *
The obituary regarding Thomas W. Bucher (still available on Lancaster Online) did not give any indication about the manner of death at the age of 59, which occurred “unexpectedly.” It noted that he was employed as “a Supervisor with the Impaired Driver’s Unit of the Probation and Parole Office, Court of Common Pleas of Lancaster County” and was scheduled to retire soon. It listed his father and two sisters as closest survivors. Memorial contributions in Tom’s memory were designated to Hospice of Lancaster County.Minutes of a regular meeting held August 26, 2008, of the Board of Directors of the Lancaster Public Library(PDF, 2 pages) noted the potential interest created by the probated Last Will of Thomas W. Bucher, deceased:
On August 26, 2008,
Bucher Estate– Mrs. [Karen Haley] Field reported that the will of Thomas W. Bucher names LPL as executor and sole beneficiary of his estate.
LPL’s attorney, Appel & Yost, advised that the Library is ineligible to serve as Executor, therefore Board members signed a Resolution appointing Mrs. Field as administrator.
The Bucher family has filed an appeal. The value of this estate is not yet known. * * *
On January 4, 2009, the NewsLanc Blog reported about that appeal to probate in an entry entitled “Former Judge accuses deceased son of “insane delusion”; contests bequest to Lancaster Public Library.”
According to a Petition No. 36-2008-1522, recorded in the Lancaster Court of Common Pleas on August 21, former County Judge Wilson Bucher is contesting the estate of his deceased son, Thomas W. Bucher, who died in July, 2008.
Five years prior to his demise, Thomas Bucher signed a Will that states “I give the residue of my estate, real and personal, to the Lancaster County Library, Lancaster, Pennsylvania.”
The library has subsequently changed its name to the Lancaster Public Library. It is located at 125 N. Duke Street in the City.
The estate is anticipated to be in the amount of $500,000.
Judge Bucher contends his son Thomas “was suffering from an insane delusion caused by a mental condition that was initially diagnosed in 1975 and from which he suffered for the remainder of his life… The aforementioned insane delusion was that his immediate family was conspiring to divert his legacy under a will by a related aunt by marriage that was being probated at the time decedent’s probated will was executed…. Moreover, the scrivener of decedent’s will, Attorney Theodore Brubaker, confirmed to the undersigned counsel that the decedent initially approached him the insane delusion that his family was stealing from him.” * * *
That same local opinion and commentary blog reported further, on January 12, 2009, in an entry entitled “Despite $500,000 bequest, Library Trustees canceled project” that:
When in November the Board of Trustees of the Lancaster Public Library (125 N. Duke Street) abandoned $1.6 in grants and expenditures and canceled plans to upgrade and renovate, they were aware that they had recently received a windfall bequest of over $500,000 from the Thomas Bucher Estate that could have been applied to the $1.1 to $1.3 million to complete the project. * * *
The January 11th Lancaster Sunday News article noted another twist — participation by the Pennsylvania Attorney General’s Office, Charitable Trusts & Organizations Section, on behalf of the Library as a charitable residuary beneficiary.
Meanwhile, the Pennsylvania Attorney General’s Office has gotten involved, filing a motion to have Steven R. Blair disqualified as Wilson Bucher’s attorney because Blair may wind up being called as a witness.
Blair * * * has fought the attempt to remove him. In court documents, he notes that his father-in-law is 88 years old, with significant health problems, and that forcing him to get another attorney “would work a substantial hardship” upon the retired judge.
Reached last week, Blair declined to comment on the record, except to note that the Perry Countyjudge, Joseph Rehkamp, must first rule on whether he can continue to represent Wilson Bucher before the challenge to the will can proceed. * * *
That last reference raises another quirk in the case — the self-recusal of Lancaster County Orphans’ Court Division Judge Jay Hoberg from hearing the matter.
Because of Wilson Bucher’s history on the Lancaster County bench, county JudgeJay Hoberg recused himself.
A judge from Perry County will be brought in to decide the case. * * *
This unusual case, and the headline article reporting it, were summarized by Attorney Patti Spencer on her Pennsylvania Fiduciary Litigation blog in an entry entitled “Insane Delusion in Lancaster County” posted on January 11, 2009, where she also quoted sources on applicable principles of law.
Due to the setting of a death, a subsequent demand to alter a dispositive scheme, and the need for a vigorous defense, will contests are never pleasant or easy. Such Orphans’ Court pugilism naturally results in pain for participants, win or lose.