COMMENTS
OF THE NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS ON THE ATTORNEY
GENERAL'S ORDER REGARDING MONITORING OF CONFIDENTIAL ATTORNEY-CLIENT
COMMUNICATIONS
[66 Fed. Reg. 55062 (Oct. 31, 2001)]
INTRODUCTION
The Attorney General has crafted a regulation that violates rights guaranteed
under the First, Fourth, Fifth, and Sixth Amendments of the Constitution. The
Attorney General's Order infringes on the attorney-client privilege and
restricts the maintenance of an appropriate work-product privilege.
Implementing this regulation would circumvent Congressional authority by having
an executive body legislating the scope, method, and safeguards for monitoring
private attorney-client conversations. Further, this executive-drafted
legislation fails to use traditional standards of "probable cause,"
and fails to include any judicial oversight. Finally, the regulation is
unnecessary, serves no sound investigative function, and seriously undermines
the ethical rules that define the obligations of attorneys to courts, the
profession, clients, and justice.
People in prison do not
lose their fundamental right to a full and fair trial with the effective
assistance of counsel. Yet, the Attorney General is attempting to deprive individuals
of this basic right without any showing of a need for implementing this Order.
He has made no showing that attorneys have been used to relay terrorism
messages. Further, nothing has been presented to demonstrate that existing
mechanisms such as the crime-fraud exception and 18 U.S.C. § 2518 cannot
adequately handle any concerns that might arise. Finally, there is no reason
given for the elimination of judicial review. The Attorney General's Order also
fails to include any provision for the lawyer and client to receive disclosure
of what was intercepted as a result of this Order, thus seriously undermining
the ability to seek redress in the courts for the violations that accrue as a
result of the government monitoring attorney-client conversations. In essence,
the Attorney General's Order is a deprivation of fundamental rights with no
showing of a need for this deprivation, no showing that existing procedures
will not suffice to meet any possible concerns, and no recognition of existing
safeguards that exist to protect individuals' rights.
This Order affects the rights of
ATTORNEY GENERAL'S ORDER
The Order permits the
Attorney General to monitor communications between an attorney and a client
when the Attorney General has "reasonable suspicion" to "believe
that a particular inmate may use communications with attorneys or their agents
to further or facilitate acts of violence or terrorism." The order
recognizes that these communications would "traditionally be covered by
the attorney-client privilege." 28 C.F.R. § 501.3(d).
The Attorney General's
Order includes accommodations that are alleged to be aimed at protecting the
attorney-client privilege. In this regard, it provides that absent court
authorization, written notice of monitoring is required "to the inmate and
to the attorneys involved." The Order also instructs the "Director,
Bureau of Prisons, with the approval of the Assistant Attorney General for the
Criminal Division" to designate a "privilege team." It notes as
a rationale in having accommodations for the attorney-client privilege that it
is designed to "ensure that the investigation is not compromised by
exposure to privileged material relating to the investigation or to defense
strategy."
I. The Attorney General's
Order Seriously Undermines the Rights Guaranteed under the First Amendment of
the U.S. Constitution
The First Amendment guarantees that the federal government "shall make no
law ...abridging the freedom of speech... and to petition the Government for a
redress of grievances."
A. The Attorney General's Order Violates Inmates' Rights to Petition the
Government
Inmates in a prison
facility do not lose these constitutional rights as a result of their
incarceration. In Procunier v.
"One who is behind
prison walls does not automatically surrender their rights." McDonough v.
Director of Patuxent, 429 F.2d 1189, 1192 (4th Cir. 1970). Especially important
is a right of access to the courts. "An inmate's right of unfettered
access to the courts is as fundamental a right as any other he may hold."
Essential to the right of access to the courts through counsel is the right
while incarcerated to communicate confidentially with counsel. Courts recognize
"that the effective protection of access to counsel requires that the
traditional privacy of the lawyer-client relationship be implemented in the prison
context."
An inmate's need for
confidentiality in his communications with attorneys through whom he is
attempting to redress his grievances is particularly important. We think that
contact with an attorney and the opportunity to communicate privately is a
vital ingredient to the effective assistance of counsel and access to the
courts.
By monitoring
communications between an attorney and client, the government is denying the
inmate from having confidential communication with his or her attorney. The
client may be hesitant to discuss pertinent legal matters if he or she believes
that the conversation is being listened to by the government. The chilling
effect of monitoring can infringe on the rights of the client that desires to
hire an attorney, the client being represented by counsel pre-trial and during
trial, and the client represented post-trial. Absent full information, the
attorney cannot properly investigate a client's case and cannot properly
prepare for trial. In many of these instances it is necessary to obtain
information quickly, as in preparing a case within the strict time limits
accompanying the appellate process. A client's reluctance to speak, knowing
that the government is listening to the conversation, will seriously undermine
the ability of the attorney to properly represent the client. A lawyer in the
dark about the facts of a case is not serving the client's interests or the
system of justice.
B. The Attorney General's Order is not Appropriately Tailored to Meet
Penological Interests
In Turner v. Safley, supra,
the Court stated that "when a prison regulation impinges on inmates'
constitutional rights, the regulation is valid if it is reasonably related to
legitimate penological interests." Courts have examined penal institution
regulations with this test in mind. See, e.g., Muhammad v. Pitcher, 35 F.3d
1081 (6th Cir. 1994). Thus, to permit the Attorney General's Order requires a
showing of a legitimate penal interest and that the regulation is appropriately
tailored to address that interest.
The Attorney General could
not entertain this Order outside a prison facility. Monitoring conversations of
attorneys and clients would require a showing of crime-fraud, a finding of
probable cause, a neutral and detached magistrate reviewing the situation, and
in all but the exceptional case the monitoring would be prohibited. Since the
monitoring suggested by this Attorney General's Order cannot occur outside a
prison facility, to occur within the facility requires a showing by the
government of a special prison interest.
The Attorney General's
Order, however, offers no penological rationale for monitoring attorney-client
conversations. Although national security concerns are concerns of all of
society, they have no special status that relates to security within a prison
facility.
Additionally the Attorney
General's Order is not appropriately tailored to address specific needs of the
institution. The Order adopts a standard of "reasonable suspicion" as
the determining factor of whether to monitor a conversation. It does not
provide for any judicial approval, judicial oversight, or showing that the
monitoring would be limited only to matters within the crime-fraud exception.
This Order is clearly a violation of the First Amendment in that it has
enormous breadth in both its scope and eventual application.
A. Government's Use of a "Privilege Team" Will Not Negate the First
Amendment Violations
The government offers as
amelioration for its conduct, the use of a "privilege team" to serve
as a "firewall" in making certain that government prosecutors are not
exposed to information that might be beneficial to the government's case. There
are, however, basic flaws in the Order's suggestion of using "taint"
teams. These "privilege teams" do not offer any assurance that the
government will in fact be excluded from receiving confidential information of
the defense. Further, the "taint team" fails to address the fact that
monitoring will still have a chilling effect on the attorney-client
conversation.
Perhaps the most obvious
flaw in the government proposal is that the "privilege" or
"taint team" is not a neutral entity. The team envisioned by this
Order is organized by the government, its scope of review is set by the
government, and its members are government personnel. There is no neutral
magistrate overseeing the process.
The government alleges in
the commentary accompanying the Attorney General's Order that
"[p]rocedures such as this have been approved in matters such as searches
of law offices." The government cites to the case of National City Trading
Corp. v. United States, 635 F.2d 1020 (2d Cir. 1980), as its authority. What is
excluded, however, is the fact that in National City Trading Corp., there was a
search warrant, the warrant was premised on probable cause, and a neutral and
detached magistrate was there to oversee the process.
The Attorney General's
Order also references the case of
What is not mentioned in
the government's proposal is that law office searches may include a judicial
decision to turn the products of the search over to a "taint team."
See
Overseeing government
conduct is also a crucial difference between a law office search and the
Attorney General's Order. For example, in Klitzman the court found the warrant
overbroad and determined that there was a violation of the attorney-client
privilege. In contrast, the government's proposal does not offer this
opportunity for review in that the government has complete control of the
entire monitoring process.
The government is hardly in
a position to equate the procedures used by the courts with law office searches
with those suggested in the Attorney General's Order. The proposal offers no
safeguards, no review, and no judicial monitoring. As such, the government's
suggestion of using a "taint team," as outlined in the Attorney
General's Order, does not remedy any of the First Amendment violations
committed as a result of their monitoring attorney-client communications in
prisons.
I. The Attorney General's Order Seriously Undermines the Rights Guaranteed
under the Fourth Amendment of the
The Fourth Amendment
guarantees "the right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures."
B. Government Monitoring of
Attorney-Client Conversations Violates the Fourth Amendment
It is a longstanding
principle that the "Fourth Amendment protects people, not places."
Katz v.
One does not lose all
constitutional rights when in prison. As stated by Justice O'Connor, who was
writing for the majority in Turner v. Safley, 482 U.S. 78 (1987), "prison
walls do not form a barrier separating prison inmates from the protections of
the Constitution." While inmates do not retain the full panoply of
Constitutional rights while they are incarcerated, the government does not have
unlimited rights to infringe on prisoner's Fourth Amendment rights. See
The Attorney General's
Order allows the government to intrude into an area that a person subjectively
would expect to be private and the expectation is one that society recognizes.
There can be no question that one can reasonably expect that communications
with one's attorney would be private. The question then becomes whether this
privacy interest is maintained in the context of a prison. The answer is a
clear "yes." Although the Court may not recognize all privacy rights
in prison, those with a special relationship may differ. As the Court noted in
dicta in Lanza v.
B. "Reasonable
Suspicion" Is an Inappropriate Standard for Monitoring Attorney-Client
Conversations
In addition to violating the
Fourth Amendment, the government does not provide constitutional authorization
for allowing this clear violation. The government disregards a traditional
standard used in protecting privacy interests, that being "probable
cause." The Attorney General's Order provides that attorney-client
conversations can be monitored based solely on the government's determination
being based on "reasonable suspicion." The regulation does not
provide any statement that explains or rationalizes the choice of a "reasonable
suspicion" standard as opposed to using "probable cause."
The Fourth Amendment to the
U.S. Constitution requires "probable cause, supported by Oath or
affirmation" for reduction of privacy interests. The necessity of finding
"probable cause" to infringe on an individual's privacy rights is
firmly embedded in judicial precedent. As held in Brinegar v.
Despite the respect given
to the probable cause standard, the Attorney General has disregarded this
constitutional premise to formulate his own standard of "reasonable
suspicion" as the criteria to disregard the attorney-client privilege and
confidentiality responsibilities of attorneys to their clients. Although a
standard of "reasonable suspicion" is grounded in Supreme Court precedent,
it is used only in the extenuating circumstances such as those that warrant
protection of police officers. For example, reasonable suspicion, as enunciated
in the case of Terry v.
Although national security
is clearly a concern of the highest order, the use of a "reasonable
suspicion" standard, as opposed to using "probable cause," in no
way diminishes addressing this concern. The Attorney General's Order has the
monitoring occurring after notification to the client and attorney. As such,
this is not an "on-the-spot" action, and is in no way comparable to a
street stop and frisk. Since immediacy is not the focus of the Attorney
General, there is no reason to use a lesser standard of "reasonable
suspicion" as the basis for invading a basic right to privacy.
The use of "reasonable
suspicion" in the regulation cannot be justified by the Court's recent
decision in United States v. Knights, __ U.S. ___ (Dec. 10, 2001). Unlike
Knights, the victim of the government's interception as a result of
implementing the Attorney General's Order would not be signing a consent
agreement. Unlike Knights, some of the individuals who would be subject to the
Attorney General's Order would be individuals who had not been convicted of a
crime and lost some of their rights. Even if they had been convicted of a
crime, the privacy interest that is the subject of the Knights decision cannot
be compared to the privacy interest afforded to attorney-client communications.
More importantly, the privacy interest in the Knights case is not an interest
that has been directly considered by Congress, set forth in specific
legislation, and one that Congress has determined should be governed by a
"probable cause" standard.
As presently exists,
legislative procedures for interception of wire, oral, or electronic
communications require a showing of probable cause. See 18 U.S.C. § 2518. The
level of scrutiny for government interceptions of wire, oral, or electronic
communications requires "a full and complete statement of the facts and
circumstances relied upon by the applicant, to justify his belief that an order
should be issued." The particularity of description required here is
specified by statute. It includes "details of the offense,"
"nature and location of the facilities from which or the place where the
communication is to be intercepted," "description of type of
communications sought to be intercepted," and "identity of
individuals, if known."
Congress has made it clear that interceptions that invade upon privacy
interests should be subject to careful scrutiny prior to being allowed. See
Title III of the Omnibus Crime Control and Safe Street Act of 1968 (18 U.S.C.
§§ 2510-2521). Although some latitude is given in situations of emergency, (See
18 U.S.C. § 2518 (7)), the standards found in the statute are far more
restrictive than those proposed by the Attorney General.
"The statute contains
no specific exception for wiretapping at a prison." United States v. Paul,
614 F.2d 115, 116 n.2 (6th Cir. 1980). Courts, however, have occasionally
wrestled with the applicability of this statute to prison facilities. The cases
that have bypassed this statute are not similar to what is being proposed in
the Attorney General's Order. This is not a situation where the interception
includes consent by the prisoner, nor is this a situation of routine monitoring
by a prison for prison security reasons. See, e.g., United States v. Paul,
supra (permitting monitoring in prisons of telephone, despite Title III, as a
prison security measure); United States v. Green, 842 F. Supp. 68 (W.D. N.Y.
1994) (finding consent to taping of inmates telephone calls). "Consent
under Title III is not to be cavalierly implied. Title III expresses a strong
purpose to protect individual privacy by strictly limiting the occasions on
which interception may lawfully take place." Watkins v. L.M. Berry &
Co., 704 F.2d 577 (11th Cir. 1983).
What is involved here is
targeted monitoring of attorney-client conversations, as determined by the
Attorney General, a situation that differs substantially from the routine
monitoring of telephone communications for prison security purposes. Monitoring
that is not routine, and performed for reasons other than prison security
purposes, will be a violation of the provisions of Title III. See Bunnell v.
Superior Court, 21 Cal. App.4th 1811, 26 Cal. Rptr.2d 819 (3d Dist. 1994)
(stating "[w]e are aware of no case authority endorsing the People's
position that a law enforcement purpose in and of itself suffices to meet the
exception."); Campiti v. Walonis, 611 F.2d 387, 392 (1st Cir. 1979) (finding
that 18 U.S.C. §2510(5)(a)(i)(ii) does "not provide the basis for a
'prison exemption' from the Act."). More importantly, conversations
between an attorney and client, even in a prison, are afforded protection. See
United States v. Van Poyck, 77 F.3d 285, 291 n.9 (9th Cir. 1996) (finding that
prisoners have an expectation of privacy when talking with their attorneys on
the telephone).
Despite the fact that
Congress has spoken clearly in passing specific legislation regarding
interceptions of wire, oral, or electronic communications, the Attorney
General's proposal disregards existing legislation and attempts to use
rule-making authority to reduce a required standard of "probable
cause" to a level of "reasonable suspicion." The use of
"reasonable suspicion," as opposed to "probable cause,"
circumvents legislative authority and is unwarranted and clearly improper.
There is no basis for
saying that national security warrants disregard for the established
legislative standard set forth in 18 U.S.C. § 2518. Congress amended provisions
applicable to government interceptions in the USA PATRIOT Act, but in doing so,
the legislature did not reduce the probable cause standard required for these
interceptions. Congress recently added new predicates to include terrorism (18
U.S.C. § 2516), but did not give waivers to the Attorney General for those
being held in prisons. As such, probable cause should continue to be the
applicable standard for the interception of conversations, and absent
authorization by a "neutral and detached" magistrate, government
monitoring of attorney-client conversations should be considered a violation of
the Fourth Amendment.
B. Lack of Judicial Oversight, Review and Participation Is Inappropriate When
Constitutional Rights of Privacy Are Being Removed
As a further affront to constitutional values, this regulation allows the
government the exclusive decision-making authority to conduct this monitoring
without being subject to judicial approval, review, or oversight. The
regulation does not offer any explanation for the fact that it fails to include
judicial review and circumvents judicial participation in the entire process.
The Attorney General has
self-constructed a process that eliminates the judiciary. The importance of
having reviews using neutral judges, prior to Fourth Amendment intrusions by
the government, is stressed in the case of Coolidge v. New Hampshire, 403 U.S.
443 (1971), where the Court stated:
The point of the Fourth
Amendment, which often is not grasped by zealous officers, is not that it
denies law enforcement the support of the usual inferences which reasonable men
draw from evidence. Its protection consists in requiring that those inferences
be drawn by a neutral and detached magistrate instead of being judged by the
officer engaged in the often competitive enterprise of ferreting out crime.
Id. at 449 (citing Johnson
v. United States, 333 U.S. 10, 13-14 (1947)). Existing rules that pertain to
interceptions of conversations also require an application in writing
"upon oath or affirmation to a judge of competent jurisdiction." 18
U.S.C. § 2518(1). Yet, despite the existing precedent and legislation regarding
interceptions of conversations, the Attorney General's Order totally eliminates
the requirement of judicial review.
Threats to national
security are not a basis for ignoring these constitutional mandates. In United
States v. United States District Court, 407 U.S. 297 (1972), the Court examined
the status of Fourth Amendment rights in the context of a national security issue.
The Court stated:
These Fourth Amendment
freedoms cannot properly be guaranteed if domestic security surveillances may
be conducted solely within the discretion of the Executive Branch. The Fourth
Amendment does not contemplate the executive officers of Government as neutral
and disinterested magistrates. Their duty and responsibility are to enforce the
laws, to investigate, and to prosecute.
Id. at 316-17. The Court
also noted that "those charged with this investigative and prosecutorial
duty should not be the sole judges of when to utilize constitutionally
sensitive means in pursuing their tasks." Id. at 317. It is without doubt
clear that
the Attorney General's Order not only violates the Fourth Amendment, but also
provides no safeguards in remedying this violation.
I. The Attorney General's Order Seriously Undermines the Rights Guaranteed
under the Fifth Amendment of the U.S. Constitution
The Fifth Amendment of the
U.S. Constitution provides that no person shall be "deprived of life,
liberty, or property, without due process of law." "Such due process
includes the rights of one accused of crime to have the effective and
substantial aid of counsel." Coplon v. United States, 191 F.2d 749, 757
(D.C. Cir. 1951).
Due process requires that
individuals be provided with "fundamental fairness." As a
"free-standing" concept it includes an array of conduct that will not
be tolerated by the Court. See generally Jerold H. Israel, Free-Standing Due
Process and Criminal Procedure: The Supreme Court's Search for Interpretive
Guidelines, 45 ST. LOUIS L. REV. 303 (2001) (discussing the pre-trial through
sentencing cases that have applied the due process clause). Key fundamental
rights are enforced through the due process clause, such as the duty of
prosecutors to disclose exculpatory evidence (Brady v. Maryland, 373 U.S. 83
(1963)), and the rights of indigents to have access to experts for evaluating
scientific evidence (Ake v. Oklahoma, 470 U.S. 68 (1985)).
The right to assistance of
counsel is a central element of "fundamental fairness." See, e.g.,
Powell v. Alabama, 287 U.S. 45 (1932). The Attorney General's Order is contrary
to "fundamental fairness" in limiting individuals' rights to confer
with their counsel freely, in limiting the right to properly prepare the charges
facing the client, and in denying individuals the ability to discuss the
charges or allegations against them free of government surveillance.
Although the Attorney
General's Order speaks to considerations under the Sixth Amendment, the Fifth
Amendment is not mentioned. This is particularly noteworthy in that the Fifth
Amendment reaches a broader range of individuals. For example, rights under the
Fifth Amendment apply to those who have not been charged and those who might be
material witnesses. See United States v. Kennedy, 225 F.3d 1187, 1194 (10th
Cir. 2000) (providing that "while a claim of a Sixth Amendment violation
based on intrusion of attorney-client privilege is limited to government action
which interferes with legal representation after the initiation of criminal
proceedings, we acknowledge a defendant may claim his or her rights under the
Due Process Clause have been violated by prosecutorial misconduct occurring
prior to indictment."); In re Class Action Application for Habeas Corpus
ex rel. All Material Witnesses in the Western District of Texas, 612 F. Supp.
940 (W.D. Tex. 1985) (finding that material witnesses held under 18 U.S.C. §§
3142, 3144 have a Fifth Amendment right to counsel).
One does not lose their
rights under the Fifth Amendment when they are incarcerated. In Wolff v.
McDonnell, 418 U.S. 539, 555-56 (1974), the Court held that "[t]here is no
iron curtain drawn between the Constitution and the prisons of this
country." Specifically with regard to rights of due process, the Court
noted that "[p]risoners may also claim the protections of the Due Process
Clause. They may not be deprived of life, liberty, or property without due
process of law." Id. at 556. Internal order and institutional security can
serve as limitations on these rights. See Bell v. Wolfish, 441 U.S. 520 (1979).
As previously shown, the
Attorney General's Order fails to provide any institutional security concern as
the motivation for the violation of a constitutional right. See supra at IB.
With no penal rationale for the deprivation of substantive due process rights,
there is no justification for allowing this Attorney General's Order.
I. The Attorney General's
Order Seriously Undermines the Rights Guaranteed under the Sixth Amendment of
the U.S. Constitution
The Sixth Amendment
provides that "[i]n all criminal prosecutions, the accused shall enjoy the
right ... to have the Assistance of Counsel for his defense." Court
precedent has emphasized the importance of this provision of the Sixth
Amendment. See Gideon v. Wainwright, 372 U.S. 335 (1963); Powell v. Alabama,
287 U.S. 45 (1932). It is a fundamental right. Individuals require "the
guiding hand of counsel at every step in the proceedings against him [or
her]." Id. at 69. As stated in the case of Escobedo v. Illinois, 378 U.S.
478 (1964):
We have learned the
companion lesson of history that no system of criminal justice can, or should
survive if it comes to depend for its continued effectiveness on the citizens'
abdication through unawareness of their constitutional rights. No system worth
preserving should have to fear that if an accused is permitted to consult with
lawyer, he will become aware of, and exercise, these rights. If the exercise of
constitutional rights will thwart the effectiveness of a system of law
enforcement then there is something very wrong with that system.
Id. at 490. There is
nothing wrong with the system here, and there is no need to void constitutional
provisions. In this same regard, there is no need to accept a regulation that
will have this result.
In Maine v. Moulton, 474
U.S. 159 (1985), the Court stated:
Once the right to counsel
has attached and been asserted, the State must of course honor it. This means
more than simply that the State cannot prevent the accused from obtaining the
assistance of counsel. The Sixth Amendment also imposes on the State an
affirmative obligation to respect and preserve the accused's choice to seek
this assistance.
Id. at 170-71. This
obligation extends to respecting the rights of the accused to converse with
their attorney without government intrusion. It is particularly egregious when
the government disregards the attorney-client privilege and the accused's right
to counsel by monitoring their conversations.
The Attorney General's
Order cites to Weatherford v. Bursey, 429 U.S. 545 (1977), in claiming that
"the presence of a government informant during conversations between a
defendant and his or her attorney, may, but need not, impair the defendant's
Sixth Amendment right to effective assistance of counsel." Omitted from
the commentary of the regulation is a caveat to this position that is noted in
footnote four of this opinion. In this footnote, Justice White, writing for the
majority, states that:
One threat to the effective
assistance of counsel posed by government interception of attorney-client
communications lies in the inhibition of free exchanges between defendant and
counsel because of the fear of being overheard. However, a fear that some third
party may turn out to be a government agent will inhibit attorney-client
communication to a lesser degree than the fear that the government is
monitoring those communications through electronic eavesdropping, ...
Id. at 554 n.4. Weatherford
v. Bursey did not involve monitoring, but rather the case involved the presence
of a co-defendant who was a government undercover agent, and participated in
attorney meetings. In contrast, the Attorney General's Order involves
government monitoring of confidential attorney-client communications. Unlike
Weatherford v. Bursey, the chilling effect results from the very existence of
this Order.
The essence of the
government's claim, that there is no Sixth Amendment violation accompanying the
Attorney General's Order, is premised on cases where the government did not
directly interfere with the attorney-client relationship. See, e.g., Massiah v.
United States, 377 U.S. 201 (1964). This differs, however, from cases where the
government directly monitors attorney-client communications. The Attorney
General omits the relevant cases that apply in this context.
Supreme Court precedent has
been clear in holding that direct government interferences with the right to
counsel violates the Sixth Amendment. See Geders v. United States, 425 U.S. 80
(1976) (finding it improper to deprive a defendant and attorney from consulting
during 17 hour overnight trial recess); Herring v. New York, 422 U.S. 853
(1975) (finding that "there can be no justification for a statute that
empowers a trial judge to deny absolutely the opportunity for any closing
summation at all"); Brooks v. Tennessee, 406 U.S. 605 (1972)
("requiring the accused and his lawyer to make that choice without an
opportunity to evaluate the actual worth of their evidence, the statute
restricts the defense-particularly counsel-in planning its case"). In
Brooks the Court rejected a state law "that restricted the right to
counsel to decide 'whether and when in the course of presenting his defense,
the accused should take the stand.'" Herring, 422 U.S. at 857-58. In Herring
the Court found a statute denied a defendant the "assistance of counsel
that the Constitution guarantees." Id. at 865. In Geders the Court
stressed the impropriety of interfering with the defendant's right to consult
with counsel. Geders, 425 U.S. at 91.
Because the Attorney General's Order directly interferes with the
attorney-client relationship, directly chills the ability of counsel to meet
with his or her client to discuss the legal matter, directly impedes the
ability of counsel to obtain necessary information to properly represent his or
her client, and directly keeps counsel and client from conversing about
strategy, it violates the Sixth Amendment of the Constitution.
I. The Attorney General's Order Circumvents Legislative and Judicial Functions
The Attorney General
attempts through this regulation to bypass the legislature and judiciary and to
provide through his rule-making authority a regulation that is diametrically
opposed to existing law. This regulation exceeds his powers and cannot be
sustained under emergency powers necessary for national security.
In Youngstown Sheet &
Tube Co. v. Sawyer, 343 U.S. 579 (1952), the Court found the executive
(President) "order directing the Secretary of Commerce to take possession
of and operate most of the Nation's steel mills" unconstitutional. The
Court held: "[t]he Founders of this Nation entrusted the law making power
to the Congress alone in both good and bad times. It would be no good to recall
the historical events, the fears of powers and the hopes for freedom that lay
behind their choice." In keeping with the importance of maintaining the
roles of each branch of government, the Attorney General's Order cannot be
allowed.
The legislature has spoken
clearly as to when it is appropriate to monitor conversations. See 18 U.S.C. §
2518. Congress, by statute, also set forth strict legislative mandates that
need to be followed in wire, oral, or electronic monitoring. Even in emergency
situations, these rules allow for action by the Attorney General, but require
strict adherence to legislative provisions. 18 U.S.C. § 2518(7) provides that
when there is an emergency situation that involves "(i) immediate danger
of death or serious physical injury to any person, (ii) conspiratorial
activities threatening the national security interest, or (iii) conspiratorial
activities characteristic of organized crime," the interception may be
made without an order if there is probable cause and there is judicial approval
of the interception "within forty-eight hours after the interception has
occurred, or begins to occur." If the order is denied by the reviewing
judge, than "the contents of any wire, oral, or electronic communication
intercepted shall be treated as having been obtained in violation of this
chapter."
Despite the existence of these strict rules, the Attorney General is proposing
an Order that will totally disregard these legislative mandates and judicial
safeguards. While prosecutors have enormous discretion, they do not have
unfettered discretion. See Bordenkircher v. Hayes, 434 U.S. 357 (1978). In
light of the clear Congressional language, it is evident that the Attorney
General has exceeded his discretionary powers in proposing a regulation that
deprives individuals of numerous constitutional rights and violates separation of
powers.
I. The Attorney General's Order Seriously Undermines the Attorney-Client and
Work Product Privileges
"The attorney-client
privilege is one of the oldest recognized privileges for confidential
communications." Swidler & Berlin v. United States, 524 U.S. 399, 403
(1998) (citing Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)). It is
intended to encourage "full and frank communication between attorneys and
their clients and thereby promote broader public interests in the observance of
law and the administration of justice." Upjohn, 449 U.S. at 389. "An
independent judiciary and a sacrosanct confidential relationship between lawyer
and client are the bastions of an ordered liberty." EDNA SELAN EPSTEIN,
THE ATTORNEY-CLIENT PRIVILEGE AND THE WORK-PRODUCT DOCTRINE (3d Ed. 1997)
(Section of Litigation, American Bar Association). Courts have also recognized
the importance of attorney-client confidentiality in preparation for trial,
through its recognition of the work-product privilege. Hickman v. Taylor, 329
U.S. 495 (1947). The importance of attorney-client confidentiality is reflected
in the fact that the attorney-client privilege extends even after the death of
a client. Swidler, 524 U.S. at 401.
When imprisoned, one does
not lose the right to consult confidentiality with a lawyer. The
attorney-client privilege must be adhered to, even in prison facilities. See
Gomez v. Vernon, 255 F.3d 1118 (9th Cir. 2001). Monitoring of conversations
between an attorney and client, even within a prison, as proposed in the
Attorney General's Order, is a clear violation of the attorney-client
privilege.
The exceptions to the
attorney-client privilege do not apply here. There is no showing of attorneys
and clients consenting or waiving the privilege. There is, likewise, no showing
of the conversation being part of the crime-fraud exception. "In order to
successfully invoke the crime-fraud exception to the attorney-client privilege,
the government must make a prima facie showing 'that the attorney was retained
in order to promote intended or continuing criminal or fraudulent
activity.'" See United States v. De La Jara, 973 F.2d 746 (9th Cir. 1992)
(quoting United States v. Zolin, 905 F.2d 1344, 1345 (9th Cir. 1990) (quoting
United States v. Hodge & Zweig, 548 F.2d 1347, 1354 (9th Cir. 1977)). Even
when the crime-fraud exception is alleged, judicial review is necessary to
determine the appropriateness of applying the exception. See United States v.
Zolin, 491 U.S. 554 (1989).
In the Attorney General's
Order we see the Attorney General providing himself with complete authority to
monitor all attorney-client conversations under the circumstances that he deems
appropriate. The monitoring is not for prison security purposes, nor is there a
showing that the conversations will meet the crime-fraud exception. If he in
fact has such evidence than the appropriate action would be for him to secure
court permission prior to any monitoring.
I. The Attorney General's Order is Contrary to Ethical Standards for Lawyers
A fundamental principle in
the client-lawyer relationship is that the lawyer maintain confidentiality of
information relating to the representation. The client is thereby encouraged to
communicate fully and frankly with the lawyer even as to embarrassing or
legally damaging subject matter.
ABA Model Rules of
Professional Conduct, Rule 1.6, Comment 4. "The observance of the ethical
obligation of a lawyer to hold inviolate confidential information of the client
not only facilitates the full development of facts essential to proper
representation of the client but also encourages people to seek early legal
assistance." ABA Model Rules of Professional Conduct, Rule 1.6, Comment 2.
The Attorney General's
Order disregards the importance of these ethical principles. By monitoring conversations
of attorney and client, the information will no longer be confidential, and
clients will be discouraged from communicating "fully and frankly"
with their attorneys.
Discarding confidentiality
between an attorney and client cannot be justified on the basis that a client
may perpetrate a future criminal act. The rules clearly provide that "[a]
lawyer shall not counsel a client to engage, or assist a client in conduct that
the lawyer knows is criminal or fraudulent." ABA Model Rules of Professional
Conduct, Rule 1.2. Further, "[a] lawyer may not knowingly assist a client
in criminal or fraudulent action." ABA Model Rules of Professional
Conduct, Rule 1.2, Comment 6.
Lawyers have a duty not to
become co-conspirators with their clients. The importance of a lawyer not
participating in criminal conduct has been stressed in opinions issued by the
American Bar Association. For example, "[a] lawyer should not undertake
representation without making further inquiry if the facts presented by a prospective
client suggest that the representation might aid the client in perpetrating a
fraud or otherwise committing a crime." Duty of Lawyer to Inquire into
Fraudulent or Criminal Conduct and Disclose Past Activities of a Prospective
Client, ABA Informal Op. 1470 (1981). Additionally, lawyers have a duty to
withdraw when their services will be used to perpetrate a crime or fraud. See
Withdrawal When a Lawyer's Services Will Otherwise Be Used to Perpetrate a
Fraud, ABA Formal Op. 92-366 (1992).
I. The Attorney General's Order Is Unnecessary and Serves No Sound
Investigative Police Function
As noted above, under the
Model Rules of Professional Conduct, "a lawyer shall not counsel a client
to engage, or assist a client in conduct that the lawyer knows is criminal or fraudulent."
ABA Model Rules of Professional Conduct, Rule 1.2. As such, if a client is
providing the attorney with information of proposed criminality, the attorney
cannot participate in furthering that conduct. The attorney can, however, serve
in a useful function to society and to the government when advised that a
client is considering possible criminal conduct.
The attorney can educate
the client of the ramifications of this criminality, thus assisting society and
the government in having the client desist from the criminal activity. The
attorney also has the ability to disclose this information in instances where
individuals might be considering conduct that "is likely to result in
imminent death or substantial bodily harm." ABA Model Rules of Professional
Conduct, Rule 1.6. Further if the client relays information of other
individuals about to participate in criminal conduct, the client can be advised
of the benefits of cooperating with the government and receiving a downward
departure motion from the government. See U.S. Sentencing Guidelines, § 5K1.1.
As such, there are clear benefits to the government and society in having a
client divulge potential criminality to his or her attorney.
By monitoring the
attorney-client conversation, and informing the client of this monitoring, it
is highly unlikely that clients will speak freely to their attorneys. It is
also unlikely that there will be any worthwhile information provided to the
government as a result of clients being informed that their conversations are
no longer protected from government intrusion. The net result of the Attorney
General's Order is, therefore, a decrease in possible valuable information that
might serve national security interests.
Equally evident is that
under the existing crime-fraud exception to the attorney-client privilege, the
Attorney General could obtain information that might be outside the scope of
proper attorney-client conduct. Here again, with no information being relayed,
there is no opportunity to invoke the crime-fraud exception to the
attorney-client privilege in order to obtain this information.
Finally, there is no
institutional benefit to the Attorney General's Order. The proposal does not
state as its mission that it is intended as a means to enhance prison security
and there is no indication that it would serve that purpose. The net result of
this regulation is a deprivation of constitutional rights with no corresponding
benefit to the government or society.
December 20, 2001