March 31, 2020

Protect the Attorney-Client Privilege and Right to Effective Counsel

Ensuring Fairness in the Federal Prison System

Attorney-client privilege is fundamental to ensuring fairness in the justice system and vital to securing the candor and cooperation a lawyer needs

Attorney-client privilege is fundamental to ensuring fairness in the justice system and vital to securing the candor and cooperation a lawyer needs

The attorney-client privilege is fundamental to ensuring fairness in the justice system and vital to securing the candor and cooperation a lawyer needs to effectively represent and serve his or her client. That is why it is extremely troubling to discover that the email system used in federal prisons forces inmates to submit to routine monitoring and review of all their email communications—including confidential emails with their lawyers—which we wrote about in January.

Fortunately, Congress is now considering bipartisan legislation sponsored by Reps. Hakeem Jeffries (D-NY) and Doug Collins (R-GA) that directly addresses this issue. H.R. 5546, known as the Effective Assistance of Counsel in the Digital Era Act, would stop the government from monitoring inmates’ privileged emails with their lawyers, a practice that is both improper and exposes those involved to unnecessary health risks in today’s environment.

In the Time of the Coronavirus:

Under the current system, prisoners with confidential legal questions or concerns often avoid using email, instead requesting a personal visit or an unmonitored phone call with his or her lawyer. After the lawyer arrives and checks in, both the lawyer and the client must be secured, searched, and transferred to the visiting area by different teams of correctional officials, during which time the staff are not available for other duties and the lawyer not available to other clients. Although there are valid security interests, the process is time consuming and inefficient.

Phone calls are more time efficient, but they are not a perfect substitute. If a prisoner requests an “unmonitored legal call” with his or her lawyer, multiple correctional staff still must be involved. These requests are usually coordinated by a counselor who must also be available during the call. The prisoner may need to be transferred to the call location where the phone call is placed by staff to verify the recipient. And while these calls should be private, facilities are often built in such a way that prison staff may be listening to the inmate’s side of the call for its duration.

H.R. 5546 strikes the right balance between legitimate law enforcement interests and the need to protect attorney-client confidentiality. Although the bill bars the government from improperly accessing privileged emails or using that information in court proceedings, it allows the government to retain the contents of inmate emails until he or she is released from prison, access non-privileged emails with a court warrant, and review the emails to the extent needed to determine which are privileged. Implementing the protections of H.R 5546 makes sense on a practical level for everyone involved in normal times, but it makes even more sense during emergencies like the COVID-19 pandemic for vital health and safety reasons.

Advocacy During ABA Day Digital
Thursday, April 23rd | 11:00am-12:00pm
Add to your Outlook calendar here.

On Thursday, April 23rd, from 11:00 am-12:00 pm we will be highlighting as a secondary #ABADay Digital issue the importance of passing H.R 5546 because it is the right thing to do for the criminal justice system, is a more efficient use of limited resources, and is especially important for health and welfare reasons during emergencies like COVID-19.

We will start our session to protect the attorney-client privilege in prisons with a TEDtalk-like presentation on the issue at 11:00 am, followed by a tweetstorm featuring the hashtag #ClientPrivilege.

We need YOU to join our call to action at 11:30 am to send emails or make phone calls using preformatted messages on our Grassroots Action Center that are guaranteed to get through congressional firewalls. Each of these messages can be edited and personalized for even more impact.

Just log on to the #ABADay Digital website and see links to take action quickly to protect the attorney-client privilege in prison and have an immediate impact on policymakers making important decisions on Capitol Hill.

For more details on protecting the attorney-client privilege in prison and other #ABADay Digital activities, click here