December 03, 2019 Practice Points

Protecting Communications with Incarcerated Clients

The recordings of attorney-client communications at Corrections Corporation of America in Leavenworth, Kansas and how to protect attorney-client communications with clients who are incarcerated.

By Sheena Foye and James R. Wyrsch

On August 13, 2019, Judge Julie Robinson of the District of Kansas provided a comprehensive overview of her factual findings and conclusions of law as it relates to the U.S. Attorney’s Office in the District of Kansas listening and/or watching recorded attorney-client visits and/or phone calls with defendants detained at Corrections Corporation of America (CCA) in Leavenworth, Kansas. (Judge Robinson’s full 188-page opinion in United States v. Karl Carter can be found in District of Kansas Case No. 16-20032-02-JAR Document 758. The authors of this practice note encourage readers to read the entire opinion as this short synopsis cannot adequately convey all of Judge Robinson’s findings and conclusions.)

In United States v. Karl Carter, defendant Carter filed a motion to dismiss his indictment based on Fifth and Sixth Amendment violations and as a sanction for the government’s abusive litigation practices during the special master investigation into the recording of attorney-client communications. Of note, the government stipulated that defendant Carter’s charges may be dismissed.

In her very detailed opinion, Judge Robinson found that the government willfully failed to cooperate with the special master’s investigation into recordings of attorney-client communications at CCA, and that both video and audio recordings existed from attorney-client visits that had occurred in person at CCA or via telephone, and that the U.S. Attorney’s office has requested to and listened to these recordings without notifying defense counsel and after making a unilateral decision as to whether or not privilege had been waived. Judge Robinson also found the U.S. Attorney’s Office in Kansas in contempt for its failure to comply with her orders and for its failure to preserve evidence and turn over documents relating to the CCA recording investigation. As a result, Judge Robinson indicated she would award the Federal Public Defender’s Office for the District of Kansas fees and costs borne resulting from the government’s failure to preserve and produce as directed in previous court orders related to the investigation into the recordings as a sanction for the contempt. (The exact costs ordered to be paid have not yet been determined although the Kansas Federal Public Defender’s Office submitted briefing requesting $224,000.) Finally, Judge Robinson laid out a road map for defendants to obtain relief through their section 2255 motions. As of August 13, 2019, a total of 110 section 2255 motions have been filed by defendants seeking relief for having their attorney-client communications recorded.

Attorneys with clients in custody should not assume that their communications in person and over the phone are not being recorded. Attorneys should make it part of their common practice to submit a letter to each facility where they have a client being held identifying their contact information and informing the facility that they are not permitted to record their communications.

A form example of letter is below:

Dear X:

I am an attorney who represents clients housed in your facility. I understand your need for safety and that some monitoring of professional visits is well within the purview of your duties. However, if your detention center is using installed devices or systems that are capable of not only monitoring, but also recording interactions between an attorney and their client, i.e. an inmate at your facility, then effective immediately, please cease and desist any audio and/or video recording of any attorney or agent within my firm while they are meeting with an inmate in your facility. This demand will cover: 1) any face-to-face contact visits between client detainees and defense counsel; 2) any non-contact visits between client detainees and defense counsel; 3) video conference calls between client detainees and defense counsel; 4) telephone calls between client detainees and defense counsel.

As you are aware, recent caselaw in the US v. Black litigation (16-CR-20032-JAR) has determined that visual recording of attorney/client visits, even those lacking audio, can be used to easily observe non-verbal communications such as use of hands, fingers, other body language, review of documents, etc. Non-verbal communication can be easily interpreted and understood through observation as it relates to attorney/client communication. Further, in the Western District, Judge Bough has also ordered that a detention facility immediately cease and desist any recording of attorney/client visits in US v. Bell (16-00003-01-CR-W-SRB).

Please be advised that our office line is X and no calls to or from this number shall be recorded as they constitute attorney/client communications. Please provide written confirmation that calls from my phone number will not be recorded and that my firm’s professional visits will not be recorded.

Thank you for your cooperation and I look forward to your response. 

Sheena Foye and James R. Wyrsch are with Wyrsch Hobbs Mirakian P.C. in Kansas City, Missouri.

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