BLOG BULLETS:

• Recall the prior post a few months ago suggesting a possible challenge to jail officials’ claim to a right to read e-mails sent between clients and attorneys over the Corrlinks or Trulincs systems.

• A recent Ninth Circuit case has some good language acknowledging the importance of a jail or prison inmate’s ability to communicate confidentially with his or her attorney.

• Though the case has some qualifying language, it could be used to support a challenge to jail officials’ review of e-mails sent between clients and attorneys over the Corrlinks or Trulincs systems.

NOW THE BLOG:

A few months back, I put up a post on the question of whether federal prison officials can read e-mails that attorneys and clients may exchange over the “Corrlinks” or “Trulincs” system. (See “Do They Get to Read Your Attorney-Client E-Mail Just Because They Say They’re Going To? What if You Tell Them in the E-Mail They Can’t? Or Get a Court to Tell Them?” in the July 2014 link at the right.) I acknowledged the warning about monitoring that’s given when you sign up for Corrlinks or Trulincs – and the general consent that’s required – before attorneys and clients are allowed to use the system, but suggested there are still arguments that the e-mails are privileged. I also discussed some letter briefing in a case pending in the Eastern District of New York and a subsequent order issued in response to that briefing that the government not read e-mails between the attorneys and the defendant in that case. I suggested arguments could be made based on both a court’s supervisory power – which is what the defense attorneys in that case argued – and the attorney-client privilege, despite the government’s argument that the warning and/or general consent waived the privilege.

A couple of weeks after putting up that post, I noticed a Ninth Circuit case come down that supports the argument for a privilege, at least to an extent. So I thought I’d share it in a follow-up post.

The case is Nordstrom v. Ryan, 762 F.3d 903 (9th Cir. 2014). The prison officials there were reading a prisoner’s ordinary “snail mail” letters to his attorney, not e-mails, and there wasn’t a prior warning or any argument there’d been some general consent to the reading of the mail. But there’s some good language in the opinion about the importance and sanctity of communication between a client and his attorney. The court wrote:

A criminal defendant’s ability to communicate candidly and confidentially with his lawyer is essential to his defense. In American criminal law, the right to privately confer with counsel is nearly sacrosanct. (Citation omitted.) It is obvious to us that a policy or practice permitting prison officials to not just inspect or scan, but to read an inmate’s letters to his counsel is highly likely to inhibit the sort of candid communications that the right to counsel and the attorney-client privilege are meant to protect. As one court put it, “[i]t is well established that an accused does not enjoy the effective aid of counsel if he is denied the right of private consultation with him.” (Citations omitted.) It takes no stretch of the imagination to see how an inmate would be reluctant to confide in his lawyer about the facts of the crime, perhaps other crimes, possible plea bargains, and the intimate details of his own life and his family members’ lives, if he knows that a guard will be privy to them, too.

Id. at 910 (emphasis in original). Note the reference to “communicat[ion],” which would seem to include e-mail, since e-mail’s a form of “communication.”

You’re probably saying to yourself there’s got to be a catch, and I’m afraid you’re right, at least potentially. The opinion goes on to express concern about “the chilling effect likely to result from an inmate’s knowledge that every word he writes to his lawyer may be intercepted by prison guards and possibly used against him.”
Id. (emphasis added). This opens up the argument the government made in the Eastern District of New York case (but rejected by the court, albeit on the other rationale argued by the defense attorneys) that there’s no infringement on rights when inmates have other ways of communicating, such as regular mail (which in the federal system isn’t read, at least supposedly) and/or special legal calls.

The response of course is the one offered by the defense attorneys in the New York case – that these alternative means of communication aren’t sufficient. Maybe that will depend on the nature of the case and the nature of the representation, but it worked in the New York case and might work in others. This recent Ninth Circuit case at least provides some general principles and additional precatory language to work with.