Gideon Alert: Striking a balance in protecting defendant-lawyer communications in jails

BY David Carroll on Wednesday, July 7, 2010 at 5:25 AM

A recent story reported by The Ledger out of Polk County (Bartow), Florida tells of a conflict between the Sheriff’s Department and the Public Defender Office.  The Sheriff wrote a letter notifying lawyers in the county that the jail will begin recording all telephone calls between lawyers and their clients in the jail starting July 1. 

The American Bar Association's Ten Principles of a Public Defense Delivery System, Principle 4, clearly addresses the systemic need for confidentiality between public counsel and defendants:“Defense counsel is provided sufficient time and a confidential space with which to meet with the client.  Counsel should interview the client as soon as practicable before the preliminary examination or the trial date.  Counsel should have confidential access to the client for the full exchange of legal, procedural and factual information between counsel and client.  To ensure confidential communications, private meeting space should be available in jails, prisons, courthouses and other places where defendants must confer with counsel.”

The Sheriff’s decision was based on his interpretation of a Florida Supreme Court opinion arising out of a different county.  In McWatters v. State of Florida, the trial court determined, on appeal from a conviction, that a recorded telephone conversation between Mr. McWatters and his attorney did not provide any evidence to the prosecution that was of detriment to McWatters’ case, and so found no reason to overturn his conviction.   The Supreme Court concurred with the trial court that McWatters’ statements “were limited in a fashion that strongly indicates his knowledge that he is being monitored or recorded and that other calls demonstrated that he clearly knows that he is subject to being recorded.”

The Public Defender for Florida's Tenth Judicial Circuit (which includes Polk County) responded to the Sheriff with a letter expressing concerns about the effect this change in jail policy will have on the way lawyers talk to their clients.  He states, “[i]t is obvious no ethical lawyer would knowingly participate in phone conversations with a client that he or she knows are being recorded and therefore not confidential.” 

This is no small concern on the part of the Public Defender.  All lawyers of every type are required to protect the confidential nature of their discussions with their clients.  Lawyers who fail to do that can be sanctioned and even face disbarment.

If defense attorneys cannot talk by telephone to their clients who are in jail, with the assurance of confidentiality, then they have to go to the jail to meet in person with their clients for every conversation, no matter how short.  This creates additional drains on taxpayers’ dollars:  jail personnel are tied up with moving defendants in and out of secure jail locations and have to provide added security during meetings; and public defenders lose valuable time making the drive to often-distant jails and then waiting while clients are processed in and out of security.  In Polk County, it is a 52-mile round trip from the public defender office to the jail where most clients are housed.  In-person meetings at jails between lawyers and clients often pose additional problems.  The Public Defender points out that “space for lawyer-client meetings was already overbooked.”

With no official response from the Sheriff, the Public Defender notified clients that the office would no longer be accepting calls from the jail.

Law enforcement agencies are expected to ensure security in the operation of jails and prisons, but in doing so they must accord equal respect to public defenders’ duty to ensure confidentiality with their clients.  A May 12, 2010, Gideon Alert suggested there are many issues that cross over boundaries between the various agencies that make up the criminal justice system and can best be addressed through an “Adjudication Partnership” – sometimes called a “criminal justice collaborating committee.”  Our American criminal justice system is built on having a strong adversarial system in individual cases.  But in designing the building blocks of that system, it is crucial for all criminal justice stakeholders to be willing to reason together, collaboratively, to reach creative and effective solutions -- solutions that take into consideration the effects that decisions made and policies carried out by one component of the system will have on all other components of the system, and that ensure the ability of every component of the system to fulfill their duties effectively.