attorney-client privilege

Inmates forfeit their right to privacy once they are behind bars. But that doesn't extend to their constitutional right to competent and effective legal counsel.

However, a massive hack of prisoner phone records exposed that an industry leader in the prisoner telecom industry has recorded at least 14,000 conversations between inmates and attorneys. The Intercept's Jordan Smith and Micah Lee reported earlier this week that Securus Technologies, a leading provider of phone services inside correctional facilities, had promised that privileged calls wouldn't be recorded. Particularly troubling is that the recordings appear to be stored indefinitely.

It is now commonplace for telecoms to record all of an inmate's phone calls and to provide notice at the start of such calls that they will be recorded. When a detainee makes a call to an attorney, the attorney-client privilege is arguable waived. But Michael Cassidy, a professor of law at Boston College Law School, told The Intercept "the Sixth Amendment right to counsel [still] applies and the government can’t interfere with it. So even if you could argue that notifying a prisoner that their calls are being recorded negates the privilege, it doesn’t negate the Sixth Amendment right to not have the government interfere with counsel.”

The Association of Corporate Counsel is arguing in the Pennsylvania Supreme Court that nonprofit in-house lawyers should not be allowed to blow the whistle to the state attorney general about the misuse of funds, Corporate Counsel's Sue Reisinger reports. The Supreme Court, in a case titled Redacted v. Redacted, is going to decide if in-house counsel may disclose information about wrongly diverted funds to the attorney general's office, "'“as parens patriae for the public to whom the charity and its counsel owe a fiduciary duty.”'

The ACC argues that if clients will be less candid with their lawyers if they are afraid their lawyers will turn them in to law enforcement.
 

The Pennsylvania Supreme Court has taken up a sealed case to consider whether a lawyer for a nonprofit corporation can break her duty of confidentiality and disclose her concerns to the Attorney General's Office that charitable assets are being unlawfully diverted, The Legal Intelligencer's Lizzy McLellan reports. The anonymous petitioner said the public charity had a fiduciary duty to the public and the charity's lawyer was permitted to disclose the diversion of public charitable resources into private pockets to the attorney general.

Nonprofit practitioner Penina K. Lieber told The Legal that "'attorney-client privilege is not destroyed by the fact that you have a tax-exempt status,'" and the organization itself should approach the attorney general.

James Risen and Laura Poitras report for the New York Times that Mayer Brown, while representing Indonesia in trade talks, might have been spied upon by the National Security Agency and its overseas partner. A February 2013 document "reports that the N.S.A.’s Australian counterpart, the Australian Signals Directorate, notified the agency that it was conducting surveillance of the talks, including communications between Indonesian officials and the American law firm, and offered to share the information." The Directorate advised that attorney-client privilege could cover some of the information, The Times reports.

The Times also reports that there is only so much protection that the attorney-client privilege affords from NSA surveillance: "The N.S.A.’s protections for attorney-client conversations are narrowly crafted, said Stephen Gillers, an expert on legal ethics at New York University’s School of Law. The agency is barred from sharing with prosecutors intercepted attorney-client communications involving someone under indictment in the United States, according to previously disclosed N.S.A. rules. But the agency may still use or share the information for intelligence purposes."

Orin Kerr, writing over at The Washington Post's Volokh Conspiracy, struck a cautionary note: "It seems to me that  the story here isn’t ‘NSA helped spy on U.S. lawyers.’ Rather, the story here is more like ‘Australian government obtained legal guidance from NSA General Counsel’s Office on what to do when Australian monitoring of a foreign government includes attorney/client communications between the government and its U.S law firm.’"

Attorney counseling terrorism suspects have faced the violation of attorney-client privilege because of governmental surveillance, The Nation reports. One attorney discovered that every one of 42 phone calls with his clients had been recorded. Conversations between indicted defendants are off limits, but pre-indictment suspects are having their conversations with their lawyers surveilled, The Nation reports. Despite the arguments of many attorneys that they need confidentiality in order to represent their clients and gain their clients' trust, UCLA professor Norm Abrams struck a dour note: "'Given the fact that FISA modifies the otherwise applicable Fourth Amendment rules—the argument that FISA may also overcome the Fourth Amendment and attorney-client privilege, it’s not implausible.”'