Q: What kind of Luddite lawyer won’t use email to communicate with his client?
A: A good one.
While many lawyers are pondering the efficacy of the Cloud to store their client’s most confidential information and communications, because it’s not like the NSA (or any other fine agency known best by its initials) would ever think to look there, what has become the basic, prompt and most effective means of communications in our society is off limits for pre-trial prisoners. You know, the ones we presume innocent? The ones with the right to effective assistance of counsel? Right?
Via the New York Times:
“That’s hogwash,” Judge Irizarry said. “You’re going to tell me you don’t want to know what your adversary’s strategy is? What kind of a litigator are you then? Give me a break.”
EDNY judge Dora Irizarry wasn’t buying the party line, but then, this wasn’t her first rodeo. The federal government, always near the cutting edge of technology in the service of prisoners, offers a service to prisoners called TruLincs or Corrlinks or some sort of links with a nifty-sounding name, that allows prisoners to communicate via email. This is far better than the old deal, where they could make calls via a contracted telephone service at $27 per minute, all of which were recorded. What business doesn’t love a captive audience?
But like the warning signs posted over the telephones, the prisoners had to sign off on the terms of service for email, one of which was that their email would be monitored.
All defendants using the federal prison email system, Trulincs, have to read and accept a notice that communications are monitored, prosecutors in Brooklyn pointed out. Prosecutors once had a “filter team” to set aside defendants’ emails to and from lawyers, but budget cuts no longer allow for that, they said.
Allocation of scarce resources is a perennial problem for the government, and oddly enough, distinguishing private emails from evil ones was not a high priority. So, read ’em all. They agreed to it, so who are prisoners to complain?
The government’s argument is simultaneously true and total crap:
While prosecutors say there are other ways for defense lawyers to communicate with clients, defense lawyers say those are absurdly inefficient.
A scheduled visit to see Syed Imran Ahmed, a surgeon accused of Medicare fraud who is being held at the Metropolitan Detention Center in Sunset Park, Brooklyn, took lawyers five hours, according to court documents filed by one of Dr. Ahmed’s lawyers, Morris J. Fodeman. The trip included travel time from Manhattan and waiting for jail personnel to retrieve Dr. Ahmed.
The time required to ask a defendant a simple question is ridiculous. But questions need answers, if a lawyer is to be able to do his job. Half a day? Maybe more? Logistics are a nightmare, and carving out time for jail visits has been a monumental burden forever. For years, there was no other option. If you needed to speak with a detained client, you made the trip, sucked up the loss of half a day and just did it.
But now we have technology, that not only enables far more effective communication, but provides a huge cost savings for the public via CJA hours not wasted, and private lawyers, whose days aren’t spent in the waiting room at MDC. But no, say the feds. Not unless you want the prosecution reading your communications.
Even so, defendants want so desperately to have something remotely resembling normalized communications with their lawyers that they just can’t stop themselves from writing their innermost thoughts in emails.
“Please try to keep in mind that CorrLinks email is monitored and unprivileged,” the lawyer, Peter Goldberger, wrote, using another name for the email system. “I think this line of messages is a good example of a topic that is not suitable for discussion in this medium.”
Later that day, Mr. Fumo contacted Mr. Goldberger about his analysis of a Court of Appeals hearing on his case. “I look forward to reading your further analysis, but NOT on the email system,” Mr. Goldberger wrote.
Indeed, for years I’ve refused to discuss privileged matters with clients who used cellphones, because of the lack of security. While it might seem more paranoia than reality (until the NSA confirmed that even paranoids have enemies), it seems that security trumped inconvenience. No more. Try finding a client with a land line these days.
While it remains sound practice to never write anything you wouldn’t want the prosecution to read in any email, whether through prison or any other server, due to the third-party doctrine, and it’s frankly nuts to use cellphones or store privileged documents in the cloud, it just doesn’t seem possible to get people to stop doing what has become their normal means of communication.
But what’s happening with prosecutor’s reading prisoner’s confidential emails to their lawyers is, as Judge Irizarry noted, just total nonsense. Of course they read it, and of course they read it not for the ethereal reasons of prison security, but to spy on defense strategy, information and tactics. If they can, why wouldn’t they?
That doesn’t prevent a prosecutor from arguing a total line of “hogwash” to the court:
She seemed to take particular offense at an argument by a prosecutor, F. Turner Buford, who suggested that prosecutors merely wanted to avoid the expense and hassle of having to separate attorney-client emails from other emails sent via Trulincs. The government was not otherwise interested in the contents of those messages, he said.
Honoring privilege is just too much work. Of course, spending five hours to get into MDC to speak with a defendant isn’t too much work. At least not for the prosecutor. Yet, Judge Irizarry appears to be on the outlier end of this problem, with others seeing no issue with the government’s reading what they know to be privileged communications. Break out the popcorn, boys, the defendant sent another email!!!
In Brooklyn, Steve Zissou, a lawyer for Mr. DiFiore, tried to persuade a judge to stop prosecutors from monitoring his client’s emails. Prosecutors had confirmed that they “intended to read my communications with Mr. DiFiore over Trulincs,” he wrote. “Regardless of whether such communications qualify for protection under the attorney-client privilege, the government’s decision to read our communications with our client is entirely inappropriate.”
The judge overseeing that case, Allyne R. Ross, ruled on Thursday that the government was allowed to review the emails. “The government’s policy does not ‘unreasonably interfere’ with Mr. DiFiore’s ability to consult his counsel,” she wrote.
Why would this constitute “unreasonable interference” when the lawyers can always hop on their horses and trot on down for a personal visit any damn time they want? Just like flying in airplanes, there’s no right to use technology when there is a ready alternative at hand.