Dwindling Sanctity of Attorney-Client Confidentiality in Prisons
On October 18, 2018 the National Association of Criminal Defense Lawyers(NACDL} launched a federal suit against the Federal Bureau of Prisons (BOP) for monitoring attorney-client telecommunications and emails and for federal prosecutors’’ use of those privileged communications against the individuals in court. The NACDL’s suit follows a long line of appeals and suits alleging violation of prisoners’ sixth amendment right to counsel. Although the right to attorney-client privilege is a statutory one and not a constitutional one, the government’s interference with that right may trigger the constitutional right to counsel. See State v. Andersen, 784 N.W.2d 320, 333 (2010). Previous courts have ruled on similar situations in different ways, for example in State v. Fedorov, the Washington Supreme Court held that trooper’s presence in the room where the defendant was having a telephone conference with his attorney did not violate the defendant’s right to counsel. See State v. Federov, 183 Wash.2d 669, (2015). This attitude towards attorney-client communications in jail may have stemmed a decade before with the introduction of the 28 C.F.R. § 501.3, Prevention of acts of violence and terrorism.
§ 501.3(d) specifically allows government interference with privileged communications between incarcerated clients and their attorneys if their reasonable suspicion that the client may be using their right to privileged communication with counsel to further any plans of terrorism.
It is important to note that the enactment of this regulation was not a reaction to the 9/11 attacks where leniency on privacy was considered a suitable trade for national safety. Also, § 501.3. does not specify as to the procedure of performing this surveillance and if there are any limitations to the kinds of communication such as telephone conversations, emails, and mail. See Teri Dobbins, Protecting the Unpopular from the Unreasonable: Warrantless Monitoring of Attorney Client Communications in Federal Prisons, 53 Cath. U. L. Rev. 295 (2004). However, the NACDL’s suit was not nested in a national security claim but in protecting the individual rights of prisoners who are not necessarily monitored for terrorist activity. The disconnect from the national security defense by the government in the NACDL case allows for the full advocacy of individual’s constitutional right to an attorney. In their complaint, the NACDL focused on email communications between attorneys and their clients and stressed that some of these prisons are hours away from the attorneys and the most effective and convenient way to contact their client without having to set up an in-person conference is through email.
The focus on electronic mail in the NACDL’s argument will allow them to have a more compelling argument in this day and age. Law offices around the world rely on electronic mail for much of their communications and the interference with the confidentiality of those communications triggers not only the client’s statutory right to attorney-client privilege but significantly interferes with their constitutional right to an attorney.