The New York federal judge overseeing the mediation of a lawsuit brought by The Federal Defenders of New York against the Federal Bureau of Prisons over attorneys' access to clients in detention on Friday voiced concern over continued problems, including "brazen" conduct by prison guards who were reportedly listening in on an inmate's phone calls with lawyers.

U.S. District Judge Margo Brodie's remarks came during a weekly conference call with Federal Defenders attorneys and government lawyers representing the interests of the Metropolitan Detention Center in Brooklyn and the Metropolitan Correctional Center in Manhattan, as well as mediator and former U.S. Attorney General Loretta Lynch of Paul Weiss.

While both sides acknowledge that progress has been made in ensuring inmates in New York City federal jails have access to telephone calls with their attorneys amid the COVID-19 pandemic, Deirdre von Dornum of the Federal Defenders said issues at the MCC have been largely solved, but problems remain with certain inmates' attorney/client calls at the MDC.

Von Dornum said inmates in isolation due to the COVID-19 pandemic have not received requested calls and calls are being cut off prematurely. She also raised concerns about inmates being denied the requisite privacy for an attorney/client conversation.

She cited one instance where guards were not out of earshot as an inmate was speaking to their attorney, and the guards would even shout out parts of the inmate's privileged conversation.

"There are a lot of calls, they come all day long, they're not private and they're cut off. And there seems to be some punishment by the guards behind them," von Dornum said.

Judge Brodie said she was "troubled, because none of these things should be happening."

Assistant U.S. Attorney Seth Eichenholtz told Judge Brodie as to the privacy of calls, that he would follow up with prison personnel to make sure that guards were not listening in on inmates' attorney/client calls, but insisted that private calls are being made throughout the MDC.

"It is a problem we will look into, but I don't want to lose the perspective that to say it's not happening ... it's just not accurate," Eichenholtz said.

He also disputed the accusation that phone calls are not being made by inmates in isolation, citing multiple instances of such calls occurring.

In a mediation report filed on Thursday, Lynch reported that legal calls at the MCC went well in the past week, and while such calls "generally" went well at the MDC, concerns remain regarding that institution with respect to privacy, the length of calls and the timing of calls.

Judge Brodie thanked the parties for their work on ensuring attorney/client calls, but said "some of the issues just should really not be happening."

"Guards should know why they shouldn't be listening to calls," Judge Brodie said. "The fact that they're brazen enough to be listening and then to indicate that they are, that's problematic."

The Federal Defenders first brought the suit last year over the suspension of attorney visits. The BOP had cut off access after incidents including a fire at the jail that knocked out power and left the prison without heat in the middle of winter.

Access was initially ordered, but Judge Brodie last year declined to extend that order, finding the Federal Defenders lacked standing to bring Sixth Amendment claims. The Second Circuit in March revived the litigation, and urged that a mediator be quickly appointed to help craft new protocols amid the novel coronavirus pandemic.

The case has broadened in mediation to include the MCC. Judge Brodie has enlisted U.S. District Judge Alison J. Nathan of the Southern District of New York to assist, as well as Eastern District of New York Magistrate Judge Steven M. Gold.

The parties are due to convene for another conference call on Friday.

The Federal Defenders are represented by Jenna M. Dabbs, Sean Hecker, Joshua Matz, Matthew J. Craig and Benjamin D. White of Kaplan Hecker & Fink LLP.

The government is represented by Varuni Nelson, Rachel Balaban, Seth D. Eichenholtz and Sean P. Greene of the U.S. Attorney's Office for the Eastern District of New York.

The case is Federal Defenders of New York Inc. v. Federal Bureau of Prisons et al., case number 1:19-cv-00660, in the U.S. District Court for the Eastern District of New York.

--Editing by Emily Kokoll.