One of the most important aspects of our job is maintaining attorney-client confidentiality and it is also an integral component of the adversarial system. We need confidentiality so clients can take us in their confidence without fear of repercussion. Clients need advice and we need the information without the filter of someone overhearing that information and using it against the client.
In the criminal justice system, where the burden of proof is squarely on the State, the confidentiality is even more important. Clients tell us all sorts of things, none of which the State needs to know.
In this era of Prison Nation, however, maintaining that confidentiality has some unique challenges. As the prison population grows, so will the challenges to maintaining confidentiality. For example, defense attorneys in San Diego were outraged when they recently discovered that their telephone conversations with clients were being recorded.
A lawyer for the Sheriff’s Department said the recordings, which defense lawyers say are privileged conversations protected by law, were made because of an inadvertent glitch in the telephone system.
But defense lawyers said the eavesdropping is a felony under state law and can carry penalties of up to $5,000 per call.
They are also concerned that prosecutors – who have access to the recording system from their desktop computers – could have been privy to conversations, too.
It’s bad enough that a “glitch” in the system led to recording highly sensitive and confidential conversations, but the thought that prosecutors had access to those conversations sitting at their desks should be enough to make anyone cringe and cross their legs. Then there’s this silly waiver argument:
However, all of the calls from the jail that were recorded have an automated message at the beginning warning that the conversation was being monitored or recorded.
“I don’t know if it’s privileged if both parties are warned they are being recorded,” Toyen, a lawyer and a special assistant to the sheriff said. “If a client in jail made a phone call to me and I heard that, I wouldn’t say anything that I wouldn’t want recorded.”
So some automated recording serves as an automatic waiver of attorney-client confidentiality? Why spew this nonsense instead of just admitting you messed up?
In Connecticut, there are two “types” of phones in prisons: counselor’s phones and pay phones. The pay phones are recorded and counselor’s phones are not (supposed to be). It is rare, but sometimes I do get clients calling from pay phones in the prison. That’s when I ask them to hang up and let them know I will call their counselor to set up a legal call. But even calls with counselors aren’t always “private”. The counselor’s office is in a cell block, with other inmates outside the door – and often counselors don’t even leave the office while the client is talking.
This problem with talking to incarcerated clients isn’t limited to the phone, though. In person visits with clients also have confidentiality problems. Holding cells in small courthouses are the least confidential of all locations and yet one has to talk to clients there. There are other inmates being held in those cells and there are marshalls milling about.
One of the largest correctional facilities in the State has the least sound-proof professional visiting rooms ever built. There might as well be no walls. Anything you say above a whisper can be heard by the people in the next room and quite probably by the correctional officers standing guard outside.
But such is the system and you learn to work with it. It’s an unwritten understanding that anything heard during these “confidential” meetings will not be used by the State against your client. It has to be – otherwise the State is looking at massive lawsuits. Imagine that they did use a statement or fact learned from such a conversation. The State could quite possibly be forced to build new courthouse facilities, new visiting rooms in prisons: it would be looking at a massive expenditure.
It’s easier to turn a deaf ear. But when the conversations are being recorded, the pretense of ignorance has been shattered.