Erosion Of The Attorney-Client Privilege

August 26th, 2014 by Attorney Dan Carman

One of the most basic principles of the American justice system is that what a defendant says to his or her attorney is confidential. However, the rules for enforcing that principle are frequently tested by technological inventions. For example, the guidelines for monitoring jailhouse phone conversations are still evolving and, despite posted signs to the contrary, many defendants incorrectly assume that any information they share over the phone is private.

The popularity and convenience of email has presented its own confidentiality challenges. The common practice has been for the inmates’ email system to be screened and emails sent between defendants and their lawyers to be excluded before prosecutors were allowed to see them. This practice has now been discontinued by federal prosecutors in Brooklyn, New York, under claims of budgetary and time constraints. In the wake of this development and similar occurrences in Pennsylvania, Georgia, and Texas, defense attorneys across the country have begun to warn their incarcerated clients not to use the inmate email system for legal communication unless it’s something routine that the defendant would be willing to have anyone read or have introduced in court.

The issue has caused conflicting rulings by federal trial judges. Prosecutors argue that defendants using the federal prison email system have waived any expectation of privacy because they have to read and accept a notice clearly stating that communications on the system are monitored before they can use it. Prosecutors also claim that there are other available ways of communication such as mail through the US Postal Service, unmonitored phone calls, and face-to-face visits.

Defense attorneys argue that the government’s decision to read client communications denies inmates their constitutional right to counsel and takes away a necessary tool for an adequate defense, citing the difficulty of arranging in-person jail meetings and unmonitored phone calls as well as the inefficiency of snail mail. Defense attorneys claim that by not allowing a defendant to freely electronically communicate with his attorney, he is inhibited from aiding his own defense.

If you or someone you love has been arrested in Kentucky, particularly the Lexington area, call the office of criminal defense attorney Dan Carman at 859-685-1055 or his cell phone at 859-396-1049 for a free consultation about your or your loved one’s rights. Be aware that email sent from prison computers may be monitored, so the attorney-client privilege may not apply and your own words could potentially be used against you. Your first step should be to discuss your rights with a knowledgeable KY criminal defense lawyer. Dan has the experience you need and is admitted to practice law throughout Kentucky, in the United States District Courts for the Eastern and Western Districts of Kentucky, and in the Sixth Circuit of the United States Court of Appeals.