ABA Says Inmate-Lawyer E-Mails Should Be Shielded

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By Lance J. Rogers

Feb. 9 — E-mail communications between prisoners and their lawyers ought to enjoy the same cloak of privacy extended to face-to-face and telephone conversations, according to a formal resolution passed Feb. 8 by the American Bar Association House of Delegates at its mid-year meeting in San Diego.

Resolution 10A calls on the Justice Department and the Federal Bureau of Prisons to amend their policies allowing monitoring of prison e-mails to permit attorneys and their incarcerated clients to communicate confidentially.

Supporters of the resolution say that limiting the lawyer-client shield to traditional mail, pre-arranged telephone calls and in-person visits imposes unnecessary burdens on the attorney-client relationship and doesn't recognize the way lawyers do business in the 21st century.

“There’s no reason e-mail should be treated differently than a confidential phone call,” Donald Specter, of the Prison Law Office in Berkeley, Calif., told Bloomberg BNA.

“Confidentiality between attorneys and their clients is essential in a prison environment,” he said.

Ethical/Constitutional Concerns

“The burdens imposed by the BOP’s Legal Email monitoring policy substantially frustrate attorneys’ ability to promptly communicate with incarcerated clients regarding important case matters, as required by Rule 1.4 of the ABA Model Rules of Professional Conduct,” the report accompanying Resolution 10A says.

It also contends that the current policy implicates Sixth Amendment concerns because forcing lawyers to either visit inmates in person, coordinate special unmonitored phone calls, or send letters through the Postal Service puts an unnecessary burden on the attorney-client relationship that isn't justified by any legitimate penological interest and doesn't recognize the way lawyers communicate with their clients nowadays.

It's not just an inconvenience, the reports says. It's preventing lawyers from doing their jobs effectively.

“In today’s world, traditional communication media are clearly inadequate as compared to the efficiency and cost effectiveness of email communications,” the report says.

The resolution was sponsored by the News York County Lawyers' Association.

‘Troubling' Policy

All federal prisoners using the prison e-mail system, TRULINCS, must sign a waiver acknowledging that their communications may be monitored and that they are forfeiting any attorney-client privilege as to those messages.

Some prisoners have challenged the policy, achieving mixed results. For example, a federal judge in Hawaii last fall characterized as “troubling” the BOP policy of treating e-mail attorney communications differently from mailed attorney communications, but nonetheless ruled there is no getting around the fact that the prisoners expressly waive the attorney-client privilege when they sign up to use the system.

By contrast, a judge in the Eastern District of New York in May 2014 blocked prosecutors from eavesdropping on e-mail communications between an inmate and his lawyer, rejecting the prosecutor's argument that it would be too burdensome to erect a screen around attorney-client e-mails.

A bill to prevent federal prosecutors from reading e-mail exchanges between prisoners and their attorneys was introduced in Congress Jan. 6, by Rep. Hakeem S. Jeffries (D-N.Y.). The measure, tabbed the “Effective Assistance of Counsel in the Digital Era Act of 2016,” was referred to the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations on Feb. 3.

“Now that the ABA has weighed in, hopefully the Department of Justice and Bureau of Prisons will make this a priority,” Laurie Levenson, a former federal prosecutor who teaches at Loyola Law School in Los Angeles, told Bloomberg BNA.

“There are ways to make this happen without jeopardizing the security of our jails and prisons,” she said.

To contact the reporter on this story: Lance J. Rogers in Washington at lrogers@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

For More Information

The ABA resolution and report are available at http://www.americanbar.org/news/reporter_resources/midyear-meeting-2016/house-of-delegates-resolutions/10a.html.