More Issues About Recording Attorney-Client Communications

October 24, 2017
By Hanging Out with Carl Gunn

BLOG BULLETS:

  • A recent investigation in the District of Kansas discussed in a lengthy district court order reveals a Corrections Corporation of America facility has been recording attorney-client calls and video recording attorney-client meetings it’s not supposed to be recording.
  • On the one hand, the order shows there are potential procedures which could be instituted to exempt attorney-client phone calls from recording, so it suggests such systems might be feasible at other institutions where they don’t exist.
  • On the other hand, the order shows we need to be vigilant about making sure institutions respect such protections and watch for recording – like the video recording of attorney-client meetings at this institution – that may be going on that we don’t know about.

 

NOW THE BLOG:

Three years ago, I put up a post about the issue of jail authorities reading attorney-client e-mail, some thoughts on how to try to prevent that, and one successful effort in a New York case.  (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.)  An e-mail came across my computer a few months ago about some litigation and a district-court ordered investigation in Kansas that’s exposed recording of attorney-client phone calls and even recording of in-person meetings – though the latter appears to be just video – at a Corrections Corporation of America facility in Kansas, which may suggest issues at other Corrections Corporation of America facilities.  I’m attaching a copy of a lengthy court order, here, detailing the problems, as well as an apparent government attempt to cover it up (or at least, in the court’s words, “lack of transparency”), but thought I’d summarize a few things in the order that you might use and/or watch for at the institutions in your area.

One thing the investigation discussed in the order revealed is that a system whereby attorneys can submit their phone numbers to be kept in a “private” list of numbers for which calls aren’t recorded doesn’t work for a number of reasons.  First, the recording system still recorded calls placed to those numbers, either all or some of the time.  Second, the ability for an attorney to request that his or her number be placed on this “private” list was so poorly publicized that many inmates and even many attorneys didn’t even know about it.  This suggests two things you might consider: first, check on whether there’s such an option at your jail, and, second, suggest it be created if it doesn’t already exist.  If the Corrections Corporation of American and its contractor can run – or at least try to run – a system like this, why can’t your jail?  And make sure your jail keeps the promise not to record.

Second, the order questions the effectiveness of warnings to inmates that their calls are otherwise monitored and a government argument that this constitutes consent to the monitoring and a waiver of the attorney-client privilege.  The order questions whether information about how to obtain unmonitored calls which is provided in a 30-page inmate handbook is sufficient to make the inmates aware of the procedure for such calls, noting, “It is not surprising that someone newly detained, someone lacking the legal education to fully understand their rights, and someone who is absorbing a volume of information all at once, might not remember to convey to their attorney, the need for the attorney to initiate the phone call procedure.”  (Page 18 of the order.)  As for signs placed next to the phones, the order notes they warn all calls will be recorded, but then say nothing about the procedure for obtaining an unmonitored call.  As for a recorded warning during the call, the order notes it’s unclear whether the warning is played for all calls, even those on the “private” list that aren’t supposed to be recorded and the potential confusion that creates.  Finally, the order notes that only the inmate’s attorney can put his or her number on the “private” list, and the institution doesn’t communicate the procedure to inmates’ attorneys.  The order does note a new procedure in a footnote where the inmate is given an “Attorney Verification Form” on which he can list his attorneys’ names and telephone numbers which will then be placed on the “private” list.  (See footnote 33 at page 19 of the order.)  The order questions whether this has in fact superseded the procedures set forth in the inmate handbook, but it does suggest a potential procedure you might argue for at your jail.

Third, the order notes – and disapproves of – video recordings of attorney-client in-person meetings.  It acknowledges there isn’t audio recording of these meetings, but notes that doesn’t mean there’s no invasion of the privilege.  It explains:

In viewing [a sample recording it reviewed in camera], the Court could easily observe non-verbal communications, including the communicants’ use of their hands, fingers, and other body language.  Communication, needless to say, can be verbal and non-verbal; and non-verbal communication is at times highly communicative and easily subject to understanding through observation.

(Page 24 of the order.)  The order then goes on to give a number of examples and concludes “these examples illustrate that confidential non-verbal communications between an inmate and the defense team must be protected just as much as verbal communications.”  You might want to find out if your jail has such video and make sure it either doesn’t get made of the attorney-client interview rooms, gets made in such a way that non-verbal communication can’t be seen, or doesn’t get viewed unless there’s an incident.

In any event, this is a very interesting order to read and might provide some ideas for either procedures you might want to try to get at your jail or things to watch for at your jail.  I offer it for whatever you might do with it.