For Prisoners, Privacy Of Attorney Emails An Open Question

By Emma Cueto | February 24, 2019, 8:02 PM EST

Communications with your attorney are usually private, but there's a glaring exception for people in prison. Federal prosecutors can access all emails sent over a system set up by the Bureau of Prisons, and it's unclear how often they might be looking at emails between attorneys and their clients.

It's an issue for the 180,000 people in federal prisons, especially those held before trial, but has flown under the radar for years. Now, however, the National Association of Criminal Defense Attorneys is suing the BOP and the U.S. Department of Justice in DC federal court in an effort to determine exactly how often prosecutors request and are given access to emails between attorneys and incarcerated clients, trying to shed light on the shadowy problem.

"I see nothing positive that comes out of [letting prosecutors access attorney client emails] at all," Drew Findling, the president of the NACDL, told Law360. "It is directly adversely affecting the relationship between lawyers and their clients … Accommodations need to be made."

People in BOP custody do not have internet access in the traditional sense, but the bureau does maintain a limited email system prisoners can use to communicate with registered users.

The system, known as the Trust Fund Limited Inmate Computer System or TRULINCS, is heavily monitored and people who register to use it —both in and outside of prison — acknowledge this when signing up.

The monitoring is meant as a precaution to ensure prisoners are not using the system to commit crimes or harass their victims; however, it also effectively negates attorney client privilege, which does not extend to conversations in which a third party is present.

The problem of secure communication with attorneys is not new to email — the issue has arisen over the decades with both telephones and physical mail. As a result, federal prisons typically now have special mail protocols and procedures for arranging secure calls to attorneys. But no such system exists for emails, where the prison maintains the right to monitor any and all communications.

This issue caught fire in New York City in 2014, when the U.S. Attorney's Office for the Eastern District of New York, which covers Brooklyn, Queens and Long Island, sent a letter to the Federal Defenders of New York saying that the office did not consider emails sent via TRULINCS to fall under attorney client privilege, and that it "routinely" accessed email records.

David Patton, the head of Federal Defenders of New York, said that the impression he got from the letter and the U.S. Attorney's Office's attitude was that the office was attempting to be above board and transparent, and that the office seemed surprised by the reaction it provoked.

For the public defenders at the Federal Defenders, however, the announcement was alarming. Many attorneys had assumed that the emails attorneys exchanged over TRULINCS were screened out, in the same way that prisons did not monitor calls to their office, Patton explained. The office immediately objected to the idea that prosecutors could access email communication.

Both Patton and a representative for the U.S. Attorney told Law360 that prosecutors in the district now filter out emails sent to or from attorneys, though the office maintains that it can request attorney client communication in certain circumstances.

According to the BOP, the bureau has also made updates to the system, and since June 2017 has been able to filter out specific email addresses, though it reserves the right to monitor all emails.

However, despite these changes, Patton said, the threat of potential monitoring effectively removed emails as a viable communication option for defense attorneys.

"You never know if your case is going to be the one time that they are going to look into it," he said.

Today, it remains unclear how often federal prosecutors across the country request email records, and whether other U.S. Attorney offices have set up similar screening procedures. It's a situation that easily has the potential to be abused, but there is no clear sign whether prosecutors generally choose to take advantage of it.

Robert Zauzmer, an Assistant U.S. Attorney in the Eastern District of Pennsylvania, told Law360 that he's only requested TRULINCS email records once in his career — during sentencing of a convicted corrupt state senator, Vincent Fumo.

In that case, prosecutors decided to check Fumo's email correspondence to see if his expressions of remorse were genuine, though the office voluntarily set aside emails that involved only Fumo and his attorneys. Based on the emails, including emails exchanged with his attorneys, it seemed clear Fumo was faking it.

While the emails were useful in the Fumo case, he said, he imagined that in most cases, the hassle of getting and reading through them would outweigh the chance that prosecutors might be able to gain an advantage from them. He noted that the BOP only has limited resources to process requests, meaning the emails can take a long time to obtain and come in a large stack, arranged chronologically, which also takes a long time to go through.

However, it's also true that prosecutors may be tempted to access attorney-client emails. As the NACDL suit highlights, such emails might contain strategic discussions between a defendant and their attorney, giving prosecutors an edge. So even if it's impractical to request the records in every case, it's plausible that reviewing TRULINCS emails would be an attractive option in certain circumstances.

Finding out whether this is actually happening, however, has proven very difficult for criminal defense attorneys.

The NACDL filed suit in October, saying in its complaint that the organization had made multiple requests under the Freedom of Information Act for records related to the release of email records to prosecutors, but that the Bureau had not handed over the information.

The lawsuit also argued that by monitoring attorney-client emails, effectively rendering the emails nonprivileged, the BOP also infringed on defendants' Sixth Amendment right to effective assistance of counsel. As a result of the policy, defendants are forced to rely on less effective means of communication, impacting the quality of the legal help they get, the suit alleges.

"Communication is the key to defending somebody," Findling, the NACDL president, told Law360. "By effectively eliminating a form of communication you are hampering [an attorney's] ability to represent clients."

The government has admitted that it did not fill the FOIA requests within the law's mandated deadline, but has denied all other allegations.

The NACDL isn't alone in its concerns. The American Bar Association officially came out against the practice in a 2016 resolution, while Rep. Hakeem Jeffries has pushed for legislation that would protect attorney client communications over TRULINCS.

In the meantime, though, attorneys across the country are forced to go on representing clients without being able to rely on email.

Both Findling and Patton highlighted that the issue hits particularly hard for attorneys whose clients are held in facilities far away, making it impractical to visit in person.

Patton said that even though he rarely uses email with clients, he's occasionally resorted to it for basic matters for clients who are on appeal, since they are usually held far from New York City.

Even though he never discussed anything substantive, he said, even letting someone know about a scheduling change over email was a risk since attorneys didn't know what the client might say in response.

The need for in person visits puts a strain on prison resources, too, he added.

"You would think it would be in everyone's best interest to ease communication via email," he said.

--Editing by Pamela Wilkinson.

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