The protection of the attorney-client privilege has become less sacrosanct in our criminal justice system. Government practices to encroach upon the attorney-client relationship have become more invasive and widespread than ever before. For example, the prison email system has become a blueprint for maximizing the government’s leverage in interfering with one’s right to counsel and to deviously induce waivers of the attorney-client privilege.

Recently, a Federal Court in Brooklyn (EDNY) has upheld the troubling practice of federal prosecutors searching for incriminating evidence (i.e. admissions) by reading emails between defendants and their attorneys sent through the prison email system (“TRULINCS”). The government had claimed that the practice of reading all inmate emails was solely the result of a lack of financial funding, and the Federal Bureau of Prisons (“FBOP”) cannot afford to incorporate a screening system that would separate inmate emails to attorneys. Prosecutors failed to mention, however, that federal inmates must actually pay to use the prison’s email and telephone systems, and that the recipients of such communications must be pre-approved by the FBOP. The FBOP generally creates a list of approved contacts for each inmate, and maintains a copy of such list within its database. The list not only identifies each of the inmate’s approved contacts, but also notes each contact’s relationship with the inmate (i.e. Spouse, Friend, Attorney).

Nevertheless, the Court found that federal prosecutors could legally review inmate emails with lawyers, because federal inmates receive prior warning that their communications will not be treated as privileged and must accept those terms prior to using the email system provided by the FBOP. The Court also noted that the FBOP’s failure to provide a privileged form of email communication does not infringe upon an inmate’s right to counsel, since inmates could still privately access their attorney through other forms of communication.  The Court observed that inmates are provided sufficient alternative means to engage in privileged communications with lawyers by phone calls, mail, and in-person visits.

What the Court’s opinion fails to appreciate, however, is that email communication is the most efficient and viable form of communication used by lawyers in the twenty-first century. The suggestion that inmates could use other forms of communication to contact lawyers in the federal system is simply fantastical, especially for inmates seeking to access their lawyers for post-conviction matters.

Indeed, email communication may be the only viable way for an inmate to effectively communicate with a lawyer, since the FBOP designates inmates to be housed throughout the nation without regard to the jurisdictional location of their conviction. In post-conviction matters, attorneys may be required to travel across the country in order to conduct a legal visit with a client, which may pose significant financial and practical burdens on both the inmate and the attorney’s law practice. Likewise, the FBOP mailing system inherently poses significant delays in the transmission of communications (i.e. prison mailbox rule), and prison counselors usually require an attorney to provide notice weeks in advance before even approving an inmate’s request for either a legal visit or legal telephone call.

Notably, there appears to be a split amongst the courts in Brooklyn as to whether the government’s unfettered practice of reading attorney-client emails over “TRULINCS” can continue to occur. In a Medicare Fraud prosecution, Federal Judge Dora Irizarry of the Eastern District of New York ordered the government to refrain from reading the defendant’s prison emails with his attorneys. Judge Irizarry rejected the government’s claim that it was too expensive or burdensome for the FBOP to separate emails, noting that the practice was truly controlled by the government’s interest in gaining an adversarial advantage:

That’s hogwash… You’re going to tell me you don’t want to know what your adversary’s strategy is? What kind of a litigator are you then? Give me a break.”

In the end, allowing the government to review communications between inmates and their lawyers is a destructive and unethical practice. There is simply no justification for allowing this dangerous practice to continue, and the feeble excuses offered by federal prosecutors are simply unavailing. Unfortunately, the government’s encroachment upon attorney-client communications diminishes a criminal defense lawyer’s ability to provide effective representation. Indeed, a inmate’s ability to engage in the continuous flow of privileged communications with an attorney is paramount to the development of the attorney-client relationship, and the cornerstone to the lawyer’s ability to provide effective representation in both pre-trial proceedings and post-conviction matters.

It is to be hoped that the government’s position will at least remain consistent when astute criminal defense lawyers begin seeking the disclosure of all prison email communications between the prosecution’s cooperating witnesses and their lawyers, federal attorneys, and FBI Agents in either pre-trial discovery motions or by Freedom of Information requests.  Only time will tell whether federal prosecutors truly believe that prison emails between an inmate and an attorney can never be protected by the attorney-client privilege, and will freely accede to defense requests under its Brady and Giglio obligation. 

Sources:

• United States v. Asaro, No. 14-Cr-26(ARR) (July 15 2014).
• United States v. Ahmed, No. 14-Cr-00277 (E.D.N.Y. June 27, 2014) (Minute Entry for proceedings held before Judge Dora Lizette Irizarry: Status Conference as to Syed Imran Ahmed held on 6/27/2014).
• Stephanie Clifford, Prosecutors Are Reading Emails From Inmates to Lawyers, The New York Times (July 22, 2014).