Over at Grits for Breakfast, the question was posed whether it was wrong that defendants awaiting trial should have their telephone calls with their lawyers recorded.  When I first read the post, it struck me as a no-brainer.  But the wealth of comments changed my mind.

What was the sticking point to the commenters who saw no problem here?  That there were big signs over the inmate telephones informing that the calls were recorded.  And so the battle lines are drawn:  Attorney-client privilege versus big signs.

To assist the big sign advocates, I’m going to type this post particularly slowly in the hope that they will keep up.  Constitutional rights are not subject to big signs. 

Inmates awaiting trial are not yet guilty.  They have rights.  One of those rights is the right to counsel.  Within that right is the right to communicate with counsel.  And within that right is the right to keep that communication confidential.  In other words, they can speak with their lawyer without anyone else listening. 

Now there are signs over the telephones in almost every institution warning that calls may be recorded.  All attorneys know this.  But those signs apply to calls to anyone other than a lawyer.  All attorneys believe this.  So do clients.  And we tell them that the institution cannot record or listen in on our calls.  Just because they put up signs, and institute policies, does not mean that they get to record attorney phone calls. 

It’s not to say that attorneys discuss strategy on the prison phone without any thought that someone over there might “mistakenly” listen in, but there’s a very real problem that cannot be ignored.  They just won’t let our clients out of jail so they can come to our office and have a chat with us whenever we need to speak with them.  We ask.  They say no.  What to do?

Well, there are times when we need a critical piece of information in order to do our job.  Critics of privilege would suggest that we go to the jail and talk face to face (assuming that the attorney visiting rooms aren’t bugged).  But that’s a naive option at times.  Around here, some jails are quite a distance away, and take a looooong time to get into and then another loooooong time before our clients are brought down, and to ask a single question can take 5 hours out of a lawyer’s day.  It’s not feasible. 

So, talking on the phone is the only viable option.  Does that mean we take our client’s confidentiality for granted?  Not exactly, though we depend on the prisons following the rules.  That they may not is always in our minds, and so we try to be as circumspect as possible.  Sometimes, this isn’t very circumspect.

But the jails know this.  They know that attorney speak with clients.  They know that clients use the telephones to speak with their attorney.  They know that they are not supposed to record, or listen in, on defendants and attorneys talking.  They know this is wrong.  And most importantly, they know that putting up big signs does not fundamentally alter anything, thus relieving them of the duty to honor the Constitution.

So the big sign rule that makes so many of you feel that forewarned makes it fair game is a total crock.  Big signs don’t trump the Constitution.  Little ones don’t either.  And nobody has the right to record a telephone conversation between attorney and client.  End of story.