The fact that prosecutors and corrections officials read emails between prisoners and their lawyers comes as no surprise to most defense attorneys, many of whom find it ironic that the very public officials paid to enforce the laws do not hesitate to disregard long-established professional confidentiality standards when it suits them. The fact that many local, state and federal law enforcement agencies, including the federal Bureau of Prisons (BOP), routinely monitor prisoners’ communications with their attorneys has come under increased scrutiny and criticism by judges and legal experts.

According to Ellen C. Yaroshefsky, a professor of law at the Cardozo School of Law, “it’s very troubling that the government’s pushing to the margins of the attorney-client relationship.”

Even federal judges disagree on the application of the attorney-client confidentiality doctrine in a prison setting. In Hawaii, U.S. District Court Judge Leslie E. Kobayashi found that treating electronic correspondence any differently than written mail made “no sense,” but reluctantly ruled in favor of the BOP since the prisoner-plaintiffs had waived their attorney-client privilege when using the prison’s email system. See: Arciero v. Holder, U.S.D.C. (D. Hawaii), Case No. 1:14-cv-00506-LEK-BMK (Sept. 30, 2015).

Federal prisoners who use the BOP’s CorrLinks email service (part of the TRU­LINCS system) must acknowledge before sending emails that they have no expectation of privacy. However, most defense lawyers readily admit that other means of communication with their incarcerated clients are also subject to monitoring. Arranging in-person meetings and “confidential” attorney-client calls is difficult, time-consuming and expensive, and attorneys cannot be certain that those communications are not monitored in some manner, too.

According to Morris J. Fodeman, one of the lawyers representing Syed Imran Ahmed, a physician facing Medicare fraud charges who is incarcerated at the federal Metropolitan Detention Center in Brooklyn, New York, it often takes him five hours to visit his client – including travel time and delays at the jail in getting his client to the interview room. Fodeman or his staff must make such visits because, he said, they need their client’s assistance to understand much of the medical evidence, clearly hampering their defense efforts. Unfortunately, Fodeman’s experiences are replicated at virtually every jail throughout the country.

Federal prosecutors have been unapologetic, but a June 27, 2014 ruling by the federal judge in Ahmed’s case was a clear rebuke to prosecutorial overreach. Judge Dora L. Irizarry held that the government was “precluded from looking at any of the attorney-client e-mails, period.” When told by prosecutors that the government was not interested in the contents of those emails anyway, the judge replied, “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. Every litigator wants to know what their adversary’s strategy is or you spend an awful lot of time trying to figure it out.” See: United States v. Ahmed, U.S.D.C. (E.D. NY), Case No. 1:14-cr-00277-DLI.

In other high-profile criminal cases, the defense has not prevailed in attempts to exclude the content of their client’s attorney email correspondence. In the case of reputed Bonanno crime family figure Thomas De Fiore, federal prosecutors in Brooklyn specifically sought his attorney-client emails.

Another federal prisoner, Vince Fumo, a former Pennsylvania state senator and Democratic political boss, had his emails made public in which he criticized prosecutors, reporters and the jury that convicted him. Prosecutors cited those emails in their efforts to have Fumo resentenced to a longer prison term; his sentence was increased by six months in November 2011, and he was ordered to pay an additional $1.1 million in restitution.

The monitoring of emails sent between prisoners and their attorneys is a clear violation of a defendant’s constitutional right to counsel. According to the president of the National Association of Criminal Defense Lawyers, E.G. Morris, having the option to communicate electronically is “fundamental to the attorney-client relationship.” This issue will likely grow in importance as email continues to replace other forms of correspondence between attorneys and their incarcerated clients.

On February 8, 2016, the American Bar Association (ABA) announced a resolution urging the Department of Justice (DOJ) and BOP to ensure future electronic communications between defense attorneys and their clients remain confidential and not subject to monitoring. The ABA argued that limiting communications channels for prisoners, whether deliberate or not, “puts an unnecessary burden on the attorney-client relationship that isn’t justified by any legitimate penological interest and doesn’t recognize the way lawyers communicate with their clients nowadays.”

“There are ways to make this happen without jeopardizing the security of our jails and prisons,” said former federal prosecutor Laurie Levenson. She hopes the ABA’s resolution will prompt the BOP and DOJ to update their email monitoring policies.

Meanwhile, on January 6, 2016, U.S. Rep. Hakeem Jeffries introduced a bill, the Effective Assistance of Counsel in the Digital Era Act (HR 3864), that would prohibit federal authorities from reading communications, including emails, that are subject to attorney-client privilege. The legislation was referred to the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations, where it remains pending.

Former U.S. Attorney Donald K. Stern agreed that revamping the BOP’s existing email system to filter out attorney-client messages would be costly, but, he contended, the government is already paying for the additional hours that court-appointed defense counsel and federal public defenders waste visiting their clients in lieu of more prompt and secure means of communication.

Sources: New York Times, www.philly.com, www.npr.org, www.bna.com

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