BLOG BULLETS:

• The government is claiming the right to read attorney-client e-mails over the BOP Corrlinks/Trulincs system, so be careful about using the system.
• The government claims there is no attorney-client privilege, but the authority it cites can be challenged, and there’s non-privilege arguments that courts should preclude the government from reading the e-mails.
• The non-privilege arguments succeeded in a recent Eastern District of New York case, in which the judge characterized one of the government’s claims as “hogwash.”

NOW THE BLOG:

An issue has come up recently on several of the e-mail lists I’m on, in response to a recent New York Times article published on July 22, 2014 (and a subsequent critical editorial a day or two later) about government review of attorney-client e-mails sent over the Bureau of Prisons “Corrlinks” or “Trulincs” e-mail system. The article indicates that the government used to have a “filter team” to exclude attorney-client e-mails, but has stopped doing that due to budget cuts. How often attorney-client e-mails actually get read is unclear, but the government claims to have the right.

Any claim of privilege is complicated by the fact that, as we all at least ought to know, inmates and attorneys using this system are given a written warning that the Bureau of Prisons may monitor and read e-mails sent over this system and that by using the e-mail system, the inmate and attorney purportedly consent to this monitoring. At least in one form, the warning specifically states that the monitoring and consent thereto include “electronic messages both to and from my attorney or other legal representative.” At least the inmate (I can’t recall about the attorney) has to click on a box stating “I accept” in order to use the Corrlinks/Trulincs e-mail system.

This raises some interesting questions about attorney-client privilege, the Sixth Amendment right to effective assistance of counsel, and related issues that were recently litigated in an Eastern District of New York case that’s referenced in the New York Times article. The government filed a letter brief in that case, attached here (and received courtesy of Los Angeles panel attorney Zoe Dolan), in which it noted that the defendant’s attorney had anticipatorily objected to the reading of e-mails between him and his client. The government then argued that the warning given prior to use of the e-mail meant the communications were not protected by the attorney-client privilege. It cited authority including United States v. Mejia, 655 F.3d 126, 133 (2d Cir. 2011); United States v. Hatcher, 323 F.3d 666, 674 (8th Cir. 2003); United States v. Madoch, 149 F.3d 596, 602 (7th Cir. 1998); United States v. Pelullo, 5 F. Supp. 2d 285, 289 (D.N.J. 1998); and United States v. Lentz, 419 F. Supp. 2d 820, 827-28 (E.D. Va. 2005).

The letter brief the defense filed in response, attached here, didn’t address the attorney-client privilege issue, but instead made the argument and cited authority for the propositions that “federal courts have broad powers to control their proceedings, including over matters related to discovery” and that “[t]he court’s inherent powers are even broader in criminal matters and may be invoked to protect a party’s legal rights.” It then argued that allowing the government to read the attorney-client e-mails “frustrates [the defendant’s] right to access of counsel.” It noted, inter alia, that the case at bar was a document-intensive case and it would be unreasonably burdensome to have to arrange an in-person meeting and/or unmonitored telephone call every time the attorneys had a question for the defendant about one of the documents; that sending ordinary mail back and forth typically took two to four weeks rather than a day or two, that arranging unmonitored phone calls was administratively difficult, and that traveling to the jail and meeting in person took hours; and that this not only placed demands on attorneys’ time but depleted scare CJA funds that would have to be paid for the attorneys’ time. In a wonderful oral ruling, including a description of one government argument as “hogwash” (see the transcript of the hearing attached here, and also received courtesy of Zoe Dolan), Judge Irizarry of the Eastern District of New York agreed with the defense and ruled that “the government will be precluded from looking at any of the attorney-client e-mails, period.”

I also looked at the attorney-client privilege authority the government cited, and it’s not certainly not a solid wall. TheMejia opinion presumably would be controlling in the Second Circuit, but it’s only persuasive outside the Second Circuit. And it’s arguably distinguishable because it deals with phone calls being recorded at the time of the attorney-client conversation, not the reading of a written communication after the fact. This was arguably important to the decision, because the court reasoned that “[t]he fact that the call was being recorded amounts essentially to the presence of an unsympathetic third party – BOP – listening in.” Id. at 134. The court also noted that the defendant “does not argue that he had any difficulty in contacting his attorney directly” (the call here had actually been to a family member to pass a message to the attorney) and “there is no indication that [the defendant] could not have contacted his attorney directly without being monitored.” Id. at 134. Query whether that makes Mejia distinguishable if you can document difficulty in arranging an unmonitored legal call with your particular client at your client’s particular institution, as the attorneys in the Eastern District of New York case did.

The other opinions cited in the government’s letter brief seem similarly distinguishable and/or unpersuasive. A second court of appeals opinion – Hatcher – decides the issue in just one paragraph and relies on the same reasoning that “[t]he presence of the recording device was the functional equivalent of the presence of a third party.” Id., 323 F.3d at 674. And one of the judges in Hatcher just concurred in the judgment on other grounds. On the privilege issue, he specifically disagreed that there had been a waiver of the privilege simply because the attorney-client conversations had been recorded. See id. at 675 (Bye, J., concurring). He acknowledged prior opinions holding inmates impliedly consent to the recording when they know there’s a BOP policy of recording calls, but pointed out “[t]hese same cases . . . recognize that such policies specifically exempt telephone calls made to attorneys.” Id.

As to the other opinions, the third court of appeals opinion cited by the government – Madoch – is a spousal privilege case, not an attorney-client privilege case. And the two remaining opinions are just district court opinions. The one with the most extensive analysis – Lentz – was appealed to the Fourth Circuit, which expressly avoided the issue and decided the case on other grounds. See United States v. Lentz, 524 F.3d 501, 525 (4th Cir. 2008). The district court opinion relied on the same reasoning relied upon in Mejia and Hatcher, moreover – that “[t]he presence of the recording device was the functional equivalent of the presence of a third party.” Lentz, 419 F. Supp. 2d at 828-29 (citing Hatcher, 323 F.3d at 674). Then the other district court opinion – Pelullo – pointed to the other factor relied upon in the court of appeals opinions – that “[i]f an inmate wishes to speak to an attorney a separate line is made available on which conversations are neither monitored nor recorded.” Pelullo, 5 F. Supp. 2d at 288.

For those of us here in the Ninth Circuit, I haven’t found anything on the issue, though there is a passing nugget in the case which upheld monitoring and recording of inmate calls generally – United States v. Van Poyck, 77 F.3d 285 (9th Cir. 1996). In stating that “no prisoner could reasonably expect privacy in his outbound telephone calls” when there was a warning that they were monitored, the court added the caveat that “[t]his analysis does not apply to ‘properly placed’ telephone calls between a defendant and his attorney, which the [Los Angeles] MDC does not record or monitor.” Id. at 291 n.9. While this doesn’t directly address the result when the jail or prison does extend its monitoring to even attorney-client calls (or, as here, e-mails), it does suggest that there are different concerns.

So what to do with all this? First, a caution. We shouldn’t just start freely communicating about important, confidential matters with the idea that we’ll later argue they’re privileged, because we might or might not prevail. I’ve toyed with the idea of beefing up the potential argument if it ever had to be made, by prefacing all my e-mails with something like the following:

THIS E-MAIL AND ANY RESPONSE THERETO IS A PRIVILEGED ATTORNEY-CLIENT COMMUNICATION. THE PARTICIPANTS DO NOT CONSENT TO READING OF THIS E-MAIL BY ANY OTHER PERSON AND EXPRESSLY OBJECT THERETO. THIS EXPRESS OBJECTION OVERRIDES ANY OTHER ARGUABLE IMPLIED GENERAL CONSENT TO REVIEW OF E-MAILS THROUGH THIS E-MAIL SYSTEM.

But even with this, our arguments that the privilege is preserved might or might not work, so we still need to be careful about what we say in e-mails. Many attorneys reasonably refuse to use the Corrlinks/Trulincs system at all, because even if the attorney is careful, the client may not be careful – or know what to be careful about.

A better attack would seem to be the approach taken in the Eastern District of New York case in which the letter briefs I’ve attached were filed – a proactive, pre-communication motion that the government not look at any attorney-client e-mails. First, this would allow the additional non-privilege argument about the court’s broad inherent powers to control proceedings and protect a party’s legal rights. Second, there would then be (1) a court order binding the government and (2) an almost indisputable claim of privilege because of the assurance of confidentiality ordered by a court. Third, if enough of us start filing these motions in enough cases, it might bring institutional pressures to bear. Maybe the government would set up a separate attorney-client e-mail system that’s not monitored. Maybe it will make unmonitored legal calls easier to set up. Maybe something else useful will come out of it. It did work in the Eastern District Court of New York case.