Protecting the Attorney-Client Privilege for Detained or Incarcerated Clients

No matter how often we advise clients not to talk to anyone about their cases, sometimes it seems that clients who are in pre-trial custody cannot help discussing their cases on the phone. This fact is not lost on law enforcement. Recorded jail conversations have become a fruitful source of evidence for the prosecution.[1] Digital telephone technology makes it easy in many cases for law enforcement to pull all calls made by a particular inmate or to concentrate on calls made to a specific phone number. The focus of this article is to examine ways that we, as counsel, can try to prevent inadvertent waiver of the attorney-client privilege or the creation of evidence against our own clients.

Communication with clients is extremely important,[2] and communication with incarcerated clients is arguably even more important, given the consequences of detention that can affect the ability of those who have been accused of crimes to help defend their cases. Unsurprisingly, one of the most common complaints to the Board of Professional Responsibility is failure of defense counsel to communicate with the client. On the other hand, it is an equally important ethical responsibility to preserve the attorney-client privilege.[3] Unfortunately, preserving the privilege often means you can’t just update a client over the phone.

Local Jails

If a client is housed in a local jail, it is best not to discuss anything of substance when the client calls. Instead, make plans to update them in person.

If a personal visit is not possible, other means to preserve the privilege in a phone call may exist, but they are not foolproof. For example, some larger jurisdictions have the capacity to block recording of attorneys’ phone numbers. In order to achieve a privileged call, check with the chief jailer and confirm in writing that calls to your phone number are privileged. Even then, it is not the best option. Some “solutions” are that the calls are still recorded, but segregated and supposedly not reviewed. So if you can visit, you should.

Many fine Nashville attorneys were recently surprised to learn that the recordings of calls between their firms and their clients had been turned over in discovery in a federal prosecution.[4] This happened despite a written policy against listening to privileged communications.[5]

Many times, it is very difficult to tell whether a call is privileged. It has often been held that the client knows a call is not privileged because there is a recording at the beginning of the call saying it is subject to monitoring. The problem for lawyers is that we do not hear that portion of the call. For years, many of us have assumed that calls to lawyers are privileged and not monitored. Unfortunately, that is not necessarily the case.

Visiting In Person

Tennessee jails must accommodate reasonable face-to-face attorney-client visitation. Tenn. Code Ann., Section 40-14-104, which appears to date from the 1858 Code, provides that “[t]he defendant’s spouse and counsel, whether the counsel is employed by the defendant or appointed by the court, shall be allowed access to the defendant at all reasonable hours.” The code also directs that, “[t]he jailer shall also admit, without charge, persons having business with prisoners and shall remain present at all interviews between prisoners and others, except their counsel.” Tenn. Code Ann. § 41-4-114. There has been significant litigation over what “access” means, but — at a minimum — it means face-to-face, unmonitored discussion.[6] So, in local jails, there is certainly a reasonable expectation that client interviews are privileged.

If a client is in custody of the Tennessee Department of Correction, private attorney-client visitation is guaranteed by regulation. The Department of Correction allows attorney visitation between 8 a.m. and 4:30 p.m., five days a week.[7] The stated goal of the regulation is to provide uniform standards for attorney access in TDOC institutions. The regulation also makes clear that investigators, paralegals, secretaries and law students enjoy the same right to visit, provided that the relationship is documented in writing.[8] The policy specifically guarantees “one-on-one” access.[9]

The Federal Bureau of Prisons also guarantees attorneys the right to visit in person, generally in a private conference room.[10] Regardless, federal detainees are often detained pre-trial or pending sentencing in local jails that have contracted with the U.S. Marshals Service, so many of the same considerations discussed above will apply. For example, sometimes jail staff will attempt to accommodate counsel if visitation booths are unavailable by allowing a visit in a handicapped booth where the client and lawyer can talk, but through glass or screen and over a phone. Be careful, though, because any phone inmates use for visitation can be monitored or recorded.

Getting a Privileged Call: Department of Correction

When a client is incarcerated in a state penitentiary that makes it impractical to visit in person on a regular basis, a privileged telephone call should be possible.

A policy of the Tennessee Department of Correction states that calls to attorneys shall not be monitored or recorded.[11] That said, there are a number of things that can prevent policy from being executed properly. The most basic snag is that the exclusion from the recording system is based on whether the phone number called by the inmate is listed in the Tennessee Attorney’s Directory.[12] An out-of-state attorney or an attorney not in the Tennessee Attorney’s Directory must set up his or her number through the company that administers inmate calls, Global Tel*Link.[13]

Also, be aware that inmates sometimes call a third-party and have that person call the attorney. An attorney may never know this has occurred, but it will certainly result in the call being recorded and perhaps losing its privilege.

Generally, the best way to make sure a call will maintain its protected status is to call the client’s unit manager beforehand and confirm a privileged, unmonitored call. As a practical matter, some staff may be reluctant to set up an unmonitored call. It helps to have the regulations in your hand when you speak to them. Ideally, you should confirm in writing that a privileged call is scheduled. I have also heard attorneys start out a phone conversation with a detained client by announcing that this is an attorney-client privileged call and that any monitoring should be immediately discontinued. This practice, at least, shows that the subjective intent of the parties is for the communication to be protected.

Privileged Calls: Federal Bureau of Prisons

Federal law allows privileged telephone contact between attorneys and clients.[14] Again, sometimes it is still difficult to tell whether a telephone conversation will be monitored: federal policy allows inmates to call those people an inmate lists on his or her approved telephone list, and “attorneys may be included on an inmate’s telephone list with the understanding that such calls are subject to monitoring.”[15] A call to an attorney in this fashion will be monitored just like a call to the inmate’s friends.

However, federal regulations also provide that “staff may not monitor an inmate’s properly placed call to an attorney. The Warden shall notify an inmate of the proper procedures to have an unmonitored telephone conversation with an attorney.”[16] Therefore, the Policy Statement further provides:

[A] notice will be placed, in both Spanish and English, at all monitored telephone locations within the institution advising the user that all conversations from that telephone are subject to monitoring and that using the telephone constitutes consent to this monitoring. A notice will advise inmates to contact their unit team to request an unmonitored attorney telephone call.

While variations are permitted within different facilities, it is always incumbent upon the Warden to notify inmates of the proper procedure to have an unmonitored telephone conversation with an attorney.[17] As written, the regulations and policy place the burden on the inmate to speak to the proper officials, generally the unit manager, to set up the call. Often inmates do not understand the significance of an unmonitored call, so it is important for counsel to confirm, usually by calling the unit manager or case manager to make sure that confidentiality is maintained. The procedures unique to each facility for requesting a privileged call are set out in the orientations handbooks available under each facility’s listing at www.bop.gov.

Conclusion

Open communication and the free exchange of information between attorney and client are paramount to our ability to provide effective assistance. This can only happen in a truly confidential and privileged atmosphere. The last thing that any of us wants is to waive our client’s privilege while trying to keep the client informed. Jail calls are a minefield, and it is always best to talk in person; when that is not possible, counsel should know the requirements of the TDOC, BOP, and local facility to obtain and maintain a privileged line of communication. To foreclose future arguments about waiver, counsel document the expectation that all communications are privileged and confidential.

Notes

  1. See e.g., State v. Hill, 333 S.W.3d 106, 125-26 (Tenn. Crim. App. 2010) (holding that, under a Fourth Amendment analysis, the defendant had neither a subjective nor objective reasonable expectation of privacy in jail calls to his family because he was explicitly warned the calls were recorded). In the Hill case, the damaging calls were discovered by Assistant District Attorney TaKisha Fitzgerald, who has publicly said she likes to listen to jail calls at night. See Don Paine, “The 1900 Trials of Dinwiddie & McNichols and the 2008 Trial of Joe Hill,” Knoxville Bar Association CLE Presentation (April 14, 2011) available at www.knoxbar.org.
  2. See Tenn. Sup. Ct. R. 8, RPC 1.4 (“Communication”).
  3. See Tenn. Sup. Ct. R. 8, RPC 1.6 (“Confidentiality”). The Commentary to Rule 1.6 refers to the duty to safeguard against inadvertent or unauthorized disclosure. Similarly, the Ethics Advisory Committee of the National Association of Criminal Defense Lawyers (NACDL) emphasizes counsel’s role in maintaining confidential and privileged communications and concludes that counsel must seek relief from jail officials and ultimately judicial review after learning of the monitoring of communications between attorney and client. See NACDL Ethics Advisory Opinion 02-01 (November 2002) (concluding that defense counsel should argue that the Sixth Amendment right to counsel and a fair trial and the Fifth Amendment right to due process and a fair trial protect attorney-client communications from disclosure to the government); see also Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) (“privilege ‘is founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure’”) (citing and quoting Hunt v. Blackburn, 128 U.S. 464 (1888)).
  4. United States v. Abdifatah Jama Adan, No. 3:10-CR-00260, Doc. 607-1, Memorandum Order (M.D. Tenn. May 10, 2011).
  5. Id. Judge Haynes ultimately found that the jail conversations remained privileged because the inmates had been told that conversations with counsel would not be monitored but held that recordings at other facilities were not privileged where inmates were told the calls were recorded. Id. at 10-12. The Memorandum Opinion discloses that an ICE agent specifically requested calls made by certain inmates to a phone number for a law firm. Id. at 6.
  6. See e.g., Mann v. Reynolds, 46 F.3d 1055 (10th Cir. 1995) (requiring contact visits). In Knox County, a policy restricting access to inmates was struck down as violating the Sixth Amendment and Tenn. Code Ann. § 40-14-104. See Whalen v. Hutchison, No. E2001-01404-COA-R3-CV, 2002 WL 489558 (Tenn. Ct. App. Apr. 1, 2002)(attorneys’ fees based on trial court finding of violation).
  7. See Administrative Policies and Procedures, State of Tennessee, Department of Correction, Policy # 105.09 (effective April 1, 2011) (citing Tenn. Code Ann. §§ 4-3-603, 4-3-606).
  8. Id. at subsection IV.(A).
  9. Id. at subsection VI.(G).
  10. 28 C.F.R. § 543.13(b).
  11. See Administrative Policies and Procedures, State of Tennessee, Department of Correction, Policy # 503.08, subsection VI.(F)(1).
  12. Id. at subsection VI.(B)(4).
  13. Id.
  14. See U.S. Department of Justice, Federal Bureau of Prisons, Program Statement, P5264.08 (Jan. 24, 2008).
  15. Id.
  16. 28 C.F.R. § 540.102.
  17. 28 C.F.R. § 540.102.

Wade Davies WADE DAVIES is the managing partner at Ritchie, Dillard & Davies PC in Knoxville. He is a 1993 graduate of the University of Tennessee College of Law. The majority of his practice has always been devoted to criminal defense. Davies is a member of the Tennessee Bar Journal Editorial Board.