Are our private conversations confidential?
This is one of the most common questions I receive from potential clients seeking a consultation with me about a case. Most people know that there is an “attorney-client privilege” that protects their private communications with a lawyer. But are there exceptions to the privilege? Can it always be relied upon for protection? A recent article in the New York Times about prosecutors reading emails between inmates and their attorneys raised some serious concerns.
The attorney-client privilege is the oldest and one of the most important privileges recognized by the Anglo-American legal system. In California, it is codified in Evidence Code Sections 950-962, and Business and Professional Code Section 6068(e) The practical consequence of the privilege is that the attorney may neither be compelled to nor may he voluntarily disclose matters conveyed in confidence to him privately by the client for the purpose of seeking legal advice. Likewise, the client may not be compelled to testify regarding matters communicated to the lawyer privately for the purpose of seeking legal advice.
There are important policy reasons for the attorney-client privilege, including the Sixth Amendment’s right to counsel. In a criminal case, in order to effectively represent a client, a lawyer needs to communicate with her client without fear of surveillance. So you would expect that the privilege would protect attorney-client emails from the prying eyes of prosecutors and other law enforcement officials, right? Not exactly. According to the recent New York Times article, federal prosecutors in Brooklyn and around the country are freely accessing emails between inmates and their attorneys. Prosecutors argue that because inmates knowingly consent to the inspection of all messages sent on the prison email system, they waive the attorney-client privilege. The government also says it would cost too much to separate attorney-client emails from other kinds of email messages, and that inmates still have other means of communication with their lawyer, like letters phone calls and in-person visits. Yet it can take weeks for confidential letters to be processed and phone calls and in-person visits are often difficult and time consuming to arrange.
According to the article, Brooklyn prosecutors say that they intend to read emails between inmates and their lawyers in almost every case. This intrusion into privileged communications threatens the very heart of our adversary system of justice. When the practice has been challenged, courts have been divided in their rulings. Perhaps this issue will eventually be heard by the United States Supreme Court. If so, I hope that court will recognize that email is the most common form of modern communications and that this unprincipled practice by prosecutors is unconstitutional.
In the meantime, if you are not sure if your email system is confidential, do not use email to communicate with your attorney. Remember that only private communications between you and your attorney – and those working for him or her – are privileged. Also, remember that if you consult with a lawyer who you have not yet retained, with the purpose of possibly retaining the lawyer or to obtain legal advice, your private communication with that lawyer is privileged.