Kinoy v. Mitchell is a 1986 case which challenged government electronic surveillance on the grounds that it violates attorney-client privilege. The widespread use of illegal electronic surveillance in the name of national security is a central form of government misconduct.
Filed on behalf of Arthur Kinoy – movement lawyer, law professor, and a CCR founder – and his daughter Joanne Kinoy, the case originally involved the Kinoy’s right to know the details of 23 “overhearings,” 10 of which were characterized as “foreign.” The government eventually admitted that the surveillance of Arthur Kinoy and his clients included at least 200 additional overhearings. Many of these overheard conversations involved clients seeking and receiving legal advice.
The Department of Justice filed a motion asking that the case be dismissed on the ground that all the defendants had qualified immunity. The district court entered a decision that dismissed the Fourth Amendment claims on this basis but agreed with plaintiffs that their Fifth and Sixth Amendment claims for invasion of the attorney-client privilege required discovery and should not be dismissed. The government then took an interlocutory appeal to the Second Circuit. In July 1988, that court reversed the district court and ruled, without legal precedent, that Kinoy had no Sixth Amendment right to sue for violation of the attorney-client privilege which occurred as a result of the illegal wiretapping.
CCR filed a petition for a writ of certiorari with the U.S. Supreme Court in an effort to have a hearing on the important issue of whether an attorney has the right to sue for violation of the attorney-client privilege. In the spring of 1989, the Court denied the application for certiorari.
A ruling in the early stage of this case established the right to bring a civil action without having proof of wiretapping.