January 01, 2020

A Blind Spot in Attorney-Client Confidentiality

Prison Emails May Soon Be Protected

The attorney-client privilege is fundamental to ensuring fairness in the justice system because lawyers rely on the candor of their clients in representing their best interests under the law. Almost all forms of communications between lawyers and their clients are shielded by the privilege, but if the client is a federal prisoner using email, clients are essentially required to waive the privilege if they want to use the computer system. Some Members of Congress now want to change this.

Since 2005, the only way that prisoners could send or receive email messages within federal Bureau of Prisons (BOP) facilities is if they agree that their messages with lawyers are not confidential. Consequently, such legal emails are regularly read and shared with law enforcement and prosecutors. While such a waiver is not required for other forms of communication, prisoners routinely consent to this monitoring so they can continue to use the BOP email system for the same reasons we all want access to other email systems: email is fast, inexpensive, and the sender and recipient do not have be available at the same time, which is important if one person’s schedule is heavily regimented with limited access to a computer.

By eliminating such an important and preferred means of communicating with their lawyers, BOP’s practices raise concerns over both the federal prisoners’ Sixth Amendment rights and the method for obtaining prisoner waiver of confidentiality in the first place. Even for inmates who understand the waiver, they may not understand that some information they share is sensitive to their case until their attorney lets them know.  

It is not just prisoners and their lawyers seeking change to the BOP email system. Some BOP personnel would welcome the change too. Monitoring legal email is time and resource intensive in a facility whose mission is the security and safety of BOP staff and those in their custody. Time spent monitoring legal messages could be better spent on managing inmate activities and providing direct support to security personnel. Also, when people can communicate with their lawyers through unmonitored email, it reduces the time that BOP staff must spend on moving prisoners to manage an increased number of in-person lawyer meetings or phone calls, both of which are already protected by the privilege.

To finally protect attorney-client email messages in BOP-managed facilities, Representatives Hakeem Jeffries (D-NY) and Doug Collins (R-GA) have introduced H.R. 5546, the Effective Assistance of Counsel in the Digital Era Act – a bipartisan bill that would limit access to the contents of privileged attorney-client messages by the government.

The American Bar Association has long championed the preservation and strengthening of the attorney-client privilege, and on January 7, 2020, ABA President Martinez thanked the sponsors for their bill.  The ABA will strongly support H.R. 5546 as it progresses in this Congress and we encourage ABA members to urge all Members of Congress to back this vital bipartisan legislation.

For ongoing updates, please follow us on Twitter @ABAGrassroots and check the ABA Grassroots Action Center for ways you can lend your voice as this issue advances.