chevron-down Created with Sketch Beta.
March 27, 2024

Alternate ABA Day 2024 Issues

Attorney-Client Privilege and Student Loan Debt Relief

Learn more about the attorney-client privilege issues in federal prisons and the ongoing debate over student loan debt relief.

Learn more about the attorney-client privilege issues in federal prisons and the ongoing debate over student loan debt relief.

The attorney-client privilege has been a cornerstone in the American legal system for more than two centuries, protecting the confidentiality of communications between lawyers and their clients. In the criminal justice context, the privilege is necessary to help ensure the effective assistance of counsel as guaranteed by the Sixth Amendment.

Perhaps no one is in greater need of legal help than those incarcerated, whether held pre-trial or as part of a sentence. The federal prison system largely protects the confidentiality of phone calls, U.S. mail, and in-person conversations with lawyers. But the Bureau of Prisons (BOP) requires anyone using its digital network, including lawyers and their incarcerated clients, to first agree to allow BOP officials to read their messages. The more society has moved to rely on email as a primary means of communication, the greater the impact this BOP policy has had on prisoners’ access to legal help.

The BOP suggests that its policy is needed to prevent criminal activity through one’s lawyer and that proposals to protect the privilege would be too expensive to incorporate into their network. But there is no reason to treat privileged email communications differently from any other type of privileged communication, the privilege cannot be used to shield criminal activity, and the privilege can be protected without adversely affecting public safety.

One solution is the bipartisan Effective Assistance of Counsel in the Digital Era Act (EACDEA), which would allow law enforcement to access prisoner emails with their lawyers only with a warrant and special review procedures designed to prevent the affected emails from being used against the prisoners unfairly. Supported by a wide range of diverse advocacy groups, the EACDEA would protect confidential lawyer-client communiations without compromising security.

The urgency for congressional action is clear. Join us this ABA Day to ask your Members of Congress to support passage of the EACDEA this Congress. You will play a vital role in the defense of bedrock principles of our legal system and help guarantee the effective assistance of counsel for all.

ABA Day will take place in Washington, DC, but there will also be opportunities to participate and advocate online. Both in-person participants in Washington and those participating  remotely will focus on Legal Services Corporation funding and support for federal public defenders, and they will have the opportunity to advocate for protecting the confidentiality of email communications between lawyers and their incarcerated clients. In addition, those participating online are also encouraged to advocate on higher education and student loan access issues.

It is unlikely that the Higher Education Act will be renewed this Congress, but reauthorization is more than 10 years overdue. Decisions made this Congress will become the starting point for the next one, and leading proposals on the table could place a law degree out of reach for many.

The vast majority of law students take out student loans, so even small changes can have a big impact on who can afford to attend law school and ultimately earn a law degree. A leading proposal in this Congress from the chairwoman of the House Education & Workforce Committee proposes several bold reforms – some are helpful while others could hurt less affluent families.

For example, under H.R. 6951, the College Cost Reduction Act (CCRA), the generous GradPLUS program would be eliminated. Graduate professional students could only borrow a total of $150,000, but most would not get that much because annual loan limits would be capped at the national median cost of legal education. The difference between these caps and the actual cost of attending many law schools would have to be supplemented by other means including riskier, more expensive private loans. Because students would not be able to borrow as much from the federal government as before, less of their total debt would be eligible for discharge through programs like Public Service Loan Forgiveness.

But one major change could benefit all borrowers regardless of where they work. The CCRA would reduce the complexity of repayment options and include one that would allow borrowers to take up to 25 years to repay their loans with monthly payments reduced to an affordable percentage of their disposable income, just like the current Income Contingent Repayment option (ICR). But unlike all other income-driven plans today, borrowers would not have to repay more over those 25 years than they would have paid over a standard 10-year repayment term.

Those of you participating in ABA Day Digital who experienced the substantial burdens of excessive law student debt can share how these proposed changes to student loan programs would have impacted you.

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.