Background Statement:
Confidentiality of communications between lawyers and their imprisoned clients.

November 14, 2001

Human Rights First is extremely concerned by the Justice Department's interim rule permitting the Bureau of Prisons to monitor communication between lawyers and their imprisoned clients. The rule went into force on October 30, 2001 as part of a package of new measures proposed by the Justice Department in the wake of the attacks on New York and Washington D.C. on September 11, 2001. The new provision empowers the Bureau to monitor previously confidential verbal or written exchanges between lawyers and their clients, who may be held in any form of detention. Those allowed to be monitored include individuals who have not been convicted of any offence, on certification by the Attorney General “that reasonable suspicion exists to believe that an inmate may use communications with attorneys or their agents to facilitate acts of terrorism.” Such certification will last for up to one year, and is not subject to judicial review. While we understand the need for heightened security at this time, it is incumbent on the authorities to demonstrate the need for measures which limit the right of detainees to effective legal representation, protected by the Sixth Amendment of the U.S. Constitution as well as international law.

The right to the assistance of a lawyer is crucial whenever a person is taken into custody and facing a criminal charge, and relates closely to the presumption of innocence guaranteed in the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights (ICCPR). In order for this right to be meaningful, it is recognised that communications between a client and his or her lawyer are entitled to special protection. The Supreme Court has described so-called attorney-client privilege as “the oldest of the privileges for confidential communications known to the common law,” designed “to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” (Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).)

According to article 14 of the ICCPR, all persons facing criminal charges are entitled to “adequate time and facilities for the preparation of [their] defense and to communicate with counsel of [their] own choosing.” The Human Rights Committee general comment on this provision states that legal counsel must be able “to communicate with the accused in conditions giving full respect for the confidentiality of their communications. Lawyers should be able to counsel and to represent their clients in accordance with their established professional standards and judgement without any restrictions, influences, pressures or undue interference from any quarter.” (General Comment 13)

While article 14 refers particularly to persons facing criminal charges, other international human rights instruments make clear that confidentiality of lawyer-client communications must also be afforded to persons in other forms of detention. Principle 11 of the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (adopted by General Assembly resolution 43/173 of 9 December 1988) provides that all detained persons have a right to legal assistance and representation. Principles 17 and 18 elaborate on this right and specify that detainees are entitled to communicate and consult with legal counsel, in full confidentiality. Interviews between detainees and their lawyers may be in sight, but not within the hearing of a law enforcement official, and lawyer-client communications are inadmissible as evidence against the detained person. Principle 18 does provide that in exceptional circumstances, when it is considered indispensable by a judicial or other authority in order to maintain “security and good order,” the right of a detainee to communicate confidentially with his counsel may be suspended or restricted. It is, however, clear that this exception may only be invoked in rare cases, and must be subject to judicial oversight.

Similar protections can be found in the Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, in 1990. These principles provide great detail on the necessary relationship between lawyer and client, and specify that “all arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a lawyer, without delay, interception or censorship and in full confidentiality. Such consultations may be within sight, but not within the hearing, of law enforcement officials.” Additionally, the principles require that governments “recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential.”

The new Department of Justice rules are not needed to protect against attorneys who, under the guise of the attorney-client privilege, help to facilitate future or ongoing criminal activity. Under existing law, federal authorities can seek appropriate remedies under the well-established “crime-fraud” exception to the attorney-client privilege. [See U.S. v Zolin (1989) 491 US 554.] In a closed door hearing before a federal judge (and in the absence of the offending attorney), the court can take immediate and effective actions, including ordering the monitoring of communications if necessary. Other options include removing the attorney from the case and prosecutors are always free to initiate criminal proceedings against attorneys where appropriate. These procedures ensure judicial review in the narrow band of cases where an attorney is abusing the attorney-client privilege, protect legitimate attorney-client communications, and ensure that authorities have the power to investigate and prevent criminal activity without obstruction.

The new rules undermine the principle of attorney-client privilege, an essential part of the right to effective legal representation. Under the new rules, prison inmates may feel inhibited from speaking freely with their legal representatives. Where access to privileged communications is sought by investigators, existing procedures of judicial review on a case-by-case basis strike a proper balance between respect for constitutional and human rights and legitimate concerns for public security. The rules published on October 31, 2001 will impinge on legitimate attorney-client communications, and should be repealed.