How do we, as international lawyers, keep confidential information private for clients considering asset protection and international planning? And with plaintiff litigation running wild - snoops behind every corner - what rules and laws protect your most private matters?
And what countries offer you special protections, as a client, when communicating with your legal counsel?
These are questions we are often asked, and the subject of today’s newsletter is about keeping private bits private.
Privacy abuses are endless today.
We’ve seen how NSA abuses and violates its own privacy rules and law - even NSA’s agents spy on their lovers. And how the secretive U.S. DEA funnels information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation. Unfortunately, neither this Congress, nor this President, show interest in the out-of-control agencies that violate your privacy.
A big concern is when your personal information is intercepted and used to ‘recreate’ an investigative trail to effectively cover up how the information originated. Litigation lawyers know how this violates your Constitutional right to a fair trial, since you can lose important legal protections to review the potential source of damaging evidence used against you.
Relying upon the 5th amendment, which states that no person shall be compelled to be a witness against themselves, today has limited meaning. Prosecutors often use a loophole that can force you to incriminate yourself if information is in written form. A U.S. Supreme Court case held that the Fifth Amendment provides absolutely no protection for the contents of private papers of any kind. This has been interpreted to mean that a prosecutor can subpoena records you’ve created from different sources and then use them against you in court.
And when whistle-blowers expose violations of privacy, the offending bureaucrats attack those who expose them. They do nothing to temper their illegal actions. In the case of NSA’s domestic spying, they justify their lawlessness by a vague threat of terrorism and an unending war that only they can define ... and discount the offender as a rogue employee.
What’s worse, in most cases, your personal records held by trusted third parties aren’t necessarily privacy protected. That means information provided to your accountant, financial planner, or physician has little protection.
Plaintiff lawyers and prosecutors generally issue very broad summons forcing third parties to hand over all personal and financial records. These summons are commonly used in civil cases, tax cases, and in criminal prosecutions. As a former American Trial Lawyers Association named Top 100 Trial Lawyer, and former judge, I can attest first hand that for years this has been the general practice in the courtroom, and not the exception.
But to those of us that still cherish privacy, liberty, and individual rights, these Orwellian practices are disturbing.
What’s worse, the ultimate effect is that the mere threat of loss of privacy exerts a strong influence over individual behavior. When individuals fear what might happen if an unpopular view is expressed to others, they temper what they say and do. This cultivates a sense of mistrust. And once the individual is restrained from thinking and speaking freely, they will eventually be deprived of other rights and freedoms. When free speech goes, then all the rest goes too.
You think that high-tech encryption protects you?
The list of companies that have co-operated with the U.S. government with data requests, includes Microsoft, Yahoo, Google, Facebook, Paltalk, YouTube, Skype, AOL, Apple and many others. And even though generally denied, encrypted technology companies have buckled under and provided encryption keys to government sources.
Snowden exposed how the British Government Communications Headquarters (GCHQ), assisted by NSA, accessed undersea cables and used sophisticated techniques to suck up vast amounts of your personal data from the cables that carry the Internet, even when encrypted.
You never know who or what is ultimately behind the secure encrypted networks, or if the owners of the encryption services will buckle down under government threats. Just ask American businessman Ladar Levision, who under threat of U.S. government ruin and criminal action, abruptly shut down his U.S. based secured email Internet business, Lavabit. This is apparently the secured email server that Edward Snowden was using.
The bottom line is that secure encrypted email server owners can become so strongly intimated by government action that they can quickly shut down or co-operate (or both) when personal threats arise against them. After all, they are just human. This means even with the most high-level technical software and devices, and revising and altering your operations on a recurring basis with the investment of considerable time and resources, a high tech deterrent is in fact not a fully secure reality.
Even private conversations in the most sound, secured room can be wiretapped or listened into by snooping devices purchased at the local tech store. Equifax supposedly had in place highly sophisticated and secure data protection measures before their systems were hacked. And embassies, governments and large corporations incur great expense to avoid eavesdropping or hacking, only to discover later it didn't work.
Are we to say that a lawyer should never use a Wi-Fi connection, a mobile or satellite phone, or any of the above resources, companies, or transmission cables when communicating with a client? That’s impossible. And the limited secure options are too often compromised.
You can never be certain that any technology, whatever the claim of privacy, can ever be built to withstand hackers or the powerful interception devices which are doubtless in the possession of not only the government, but a lawyer’s investigation team. I know. As a litigation lawyer for many years our investigators used these devices on opponents – but of course, only for legal purposes.
How do we Protect Your Privacy?
We take great effort to secure, store and maintain only essential documents from our clients. But these measures are only an important starting point.
While there is a growing list of high-tech software designed to encrypt and circumvent the snoopers, there is a far more legally potent measure that we, as lawyers, use to protect our clients. Even if the snoopers are listening in on this email, I don’t mind sharing what this means.
Most importantly, this long established, powerful, legal tool represents one of the last vestiges that is still firmly entrenched in our precious system founded on the Rule of Law. If the Rule of Law falters, then the last delicate thread that holds together a complex quilt of society is unravelled, and data mining will be pale in comparison to far more important life-threatening issues.
The most sacrosanct assurance of confidence and privacy we can provide a client is the long established legal doctrine of attorney-client confidentiality. This legal doctrine states that communications between a client and lawyer is privileged. And this privilege is considered sacred, holy and inviolable.
What Countries Offer Attorney Client Confidentiality?
The attorney–client confidentiality privilege operates in many, but not all, countries. The laws differ from nation to nation. Importantly, a communication should be protected in the venue where it offers the best privileged protection.
It is commonly found in England, Canada, most European countries, Mexico, Argentina, Brazil, Venezuela, Peru, Netherlands, Sweden, Switzerland, Russia, Saudi Arabia, Australia, New Zealand, Hong Kong, Japan, China, India, and the U.S., to name a few.
This special privilege afforded legal counsel and the client is basically your strongest measure of confidentiality and privacy. It allows a free and open flow of communications between our office and you, as our client. Except for limited circumstances, our communications cannot be used against you by another party, or by a government organization, unless you, the client, consent.
Read the last part of the last sentence again…..’unless you, the client, consent’.
This means that even we – as your lawyer - cannot waive the confidentiality of your written or oral communication. Only you, as the client, have that power.
For this reason we always first establish the attorney-client privilege before proceeding with private communications, or providing advice.
This legal privilege protects communications made between us. With minimal exceptions, communications cannot be disclosed without your permission. The privilege belongs to you, and not your lawyer.
The philosophy behind this legal principle is to protect your ability to obtain proper legal advice by encouraging a complete disclosure to us - when acting as your legal advisers - without fear that a disclosure may prejudice you in the future.
No other privilege with any other professional e.g. your accountant, financial planner, or your physician, compares to the lawyer-client communication privilege.
What the Attorney-Client Privilege Means
In practice, what this means is that when you discuss tax or financial matters with us, it is protected. And if further tax or financial advice is necessary, the preferred practice is often for us, as your legal counsel, to retain the accountant or financial consultant on your behalf. This elevates the information communicated to them to be protected through the attorney-client privilege.
And in an extremely complex and competitive business climate shared by consultants, technical advisors and outside experts, you should consider the advantages of retaining them through legal counsel. By its very nature, the attorney-client relationship affords a distinct, invaluable right to have communications protected from compelled disclosure or subpoenas to any third party, including business associates and competitors, government agencies and even criminal justice authorities.
At its most fundamental level, the attorney-client privilege ensures that when you seek legal advice for asset protection or offshore planning through our office, you can be free of fear that your private matters will remain confidential.
With the security of the privilege, you can speak frankly and openly to us, disclosing relevant information, and creating a 'zone of privacy'.
Even today with draconian data mining everywhere, this legal doctrine still firmly applies to protect communications through our office, with only small exceptions.
The above doesn’t mean that the high tech snoopers still won’t intercept encrypted communications, but it does mean that those communications are legally protected as a matter of law and can’t be used against you.
For this reason, the attorney-client privilege maintaining confidentiality of communications, is far better than the best high tech encrypted software. Even though our law firm still utilizes secured services, we believe this long established legal doctrine is more reliable to protect your private matters from being used against you.
This also means that if you care to maintain privacy, you should only discuss and implement asset protection strategies and offshore planning through legal counsel, and never a non-lawyer. Use caution, as there are non-lawyers offering international trusts and offshore services.
And be sure that the lawyer you provide confidential material to is competent in the most important aspects of your planning. Follow this link to learn how to achieve quality asset protection, and what to look for in a top-notch legal planner.
And don't shortchange yourself.
A back up strategy for a crumbling social and political system is still necessary: A Plan B when the master plan fails.
Among your carefully implemented international planning tools it should include control of assets; optional offshore banking; global investment and financial diversification; estate and retirement planning; enhanced privacy; and the very best asset protection available internationally.
Simple and effective offshore strategies protect your assets not only from frivolous claims, but from oppressive governments and outrageous taxation. Visit our many complimentary Past Articles to learn more here.
How to Legally Protect Your Assets, 2nd edition, is an excellent primer on the above topics, and more. Offshore Living & Investing, 2nd edition, is another good option. Both are available directly at DavidTanzer.com, right here and here, or at Amazon.com here andhere.
And if you want to review your planning options, get started now with an initial review of your personal situation right here.
Until next time......
David