It can be argued that the attorney-client privilege is the foundation and perhaps the most important aspect of a relationship between a defendant and his or her criminal attorney. The attorney-client privilege encourages defendants to freely communicate with candor to their attorneys, which in turn, enables the attorneys to provide effective representation and defenses for their clients. Perhaps the attorney-client privilege is so ingrained in the minds of criminal-defense attorneys that they incorrectly assume that government actors will not intrude upon this protected and sacred relationship.
- Rule 1.6(a) of the Model Rules of Professional Conduct states: “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).”
- Rule 1.6(c) places a duty on the attorney to make reasonable efforts to ensure that client communications remain confidential: “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”
Given this affirmative duty under Rule 1.6(c), attorneys representing criminal defendants should not assume that communications with their clients in custody are exempt from audio and/or video recording.
In late July 2016, attorneys in Kansas and the Western District of Missouri learned that confidential client communications had been breached by the Kansas U.S. Attorney’s Office (USAO). The discovery came to light when the Kansas Federal Public Defender’s Office learned that the Kansas U.S. Attorney’s Office was in possession of video recordings of attorney-client meetings at a Corrections Corporation of American (CCA) prison in Leavenworth and audio recordings of attorney-client telephone calls from CCA facilities in Kansas and Missouri. Specifically, The Kansas Federal Public Defender’s Office learned that former Assistant U.S. Attorney Erin Tomasic told U.S. District Court Judge Julie Robinson, in a July 21, 2016, status conference on voluminous discovery in United States v. Black 16-20032-JAR, that her office was in possession of video of attorney-client meetings.
The Kansas Federal Public Defender’s office immediately filed a motion to return property (recorded attorney calls and visits) pursuant to Fed. R. Crim. P. 41 (g) seeking in part that the court issue an order that:
- CCA Leavenworth disclose its policy regarding surveillance and documentation of legal communication;
- CCA Leavenworth disclose how recorded legal communications are provided to the USAO or any law enforcement agency;
- the USAO disclose its policy and practice of gathering and reviewing privileged and confidential legal communications from CCA or other pretrial holding facilities;
- the USAO identify the cases in which it has gathered or reviewed confidential and privileged legal communications, and whether it has been disseminated; and
- the court appoint an outside entity to investigate the conduct of CCA and the USAO in recording and reviewing legal communications.
At the August 9, 2016, hearing regarding the Rule 41(g) motion, it was also learned that CCA had recorded every attorney-client meeting since 2008. The next day, U.S. District Court Judge Julie Robinson issued an order impounding the recordings and directing all federal detention facilities in Kansas and Missouri to stop recording attorney-client communications in their facilities. A special master appointed by Judge Robinson to identify—and excise—privileged and confidential information disseminated by the government in the Black litigation, has since issued reports, outlining his progress and findings. The reports clearly indicate that attorney-client calls and attorney client-visits had been recorded by CCA.
In May 2017, Judge Robinson approved the special master continuing his investigation, with the current phase focusing on “whether or not the government intentionally and purposefully procured and obtained recordings of attorney-client communications, and whether intentionally, or not, the government listened, viewed and/or used such recordings.” See United States v. Black 16-20032-JAR, Dkt. No. 253. Judge Robinson went on to state: “There are grave concerns about government intrusion into attorney-client communications, spawning motions filed not only by the defendants in this case, but by CCA inmates charged in other cases in this court.”
It is important to note, that in some circumstances, the Department of Justice has determined that they can monitor attorney-client calls. On October 31, 2001, the Department of Justice, issued an updated rule as it relates to the Bureau of Prisons monitoring of communications with attorneys to deter acts of terrorism. Nevertheless, the aforementioned investigation is ongoing. If you have had a call with a client at CCA-Leavenworth that you believe was a protected communication, instructions for contacting the special mater can be found at United States v. Black 16-20032-JAR, Dkt. No. 183.