The Pandemic of Intrusion into Privileged Communications between Incarcerated Clients and Their Attorneys

• Author: Elizabeth Choi
• Position: J.D., Georgetown University Law Center (expected May 2022); B.A., Fordham University (2019)
• Pages: 831-842

The Pandemic of Intrusion into Privileged

Communications between Incarcerated Clients and

Their Attorneys

ELIZABETH CHOI*

INTRODUCTION

The ability of a client to communicate confidentially with their attorney is a

cornerstone in any effective attorney-client relationship. A client is more willing

to share information relevant to their representation if they are able to rely on this

privilege.

1

Disclosure of such information is often necessary for, and at the very

least aids, a lawyer to provide fair and competent representation for their client.

2

Yet, incarcerated clients and their attorneys are routinely subjected to policies

and practices that intrude on this sacred privilege. These intrusions are wide-

reaching to the point that almost every form of communication is placed under

some form of monitoring. The level of intrusion varies amongst the different

forms of communication, but the effect is the same: an erosion of confidentiality,

trust, and communication between the attorney and their client. This is especially

concerning given the current COVID-19 pandemic that has forced incarcerated

clients and their attorneys to increasingly rely on more heavily monitored forms

of communication.

3

Proponents of these policies point to the valid and considerable governmental

interests in ensuring safety and enforcing the law.

4

Intrusion, therefore, is argued

to be necessary in order to effectuate these interests. However, these policies are

rife with cases of abuse. Moreover, even when these policies are being solely

used for their stated reasons, it is difficult to imagine how an incarcerated client,

knowing that they are being monitored to any extent, can reasonably feel secure

that their communications with their attorney will remain confidential.

* J.D., Georgetown University Law Center (expected May 2022); B.A., Fordham University (2019).

© 2021, Elizabeth Choi.

1. See Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) (emphasizing the importance of attorney-cli-

ent privilege in encouraging “full and frank communication”).

2. See id.

3. Lawyers can’t visit clients in prison, so quit monitoring their emails. THE DAILY NEWS (Jul. 9, 2020),

https://tdn.com/opinion/editorial/lawyers-cant-visit-clients-in-prison-so-quit-monitoring-their-emails/article_

3a814d10-4fc0-57d8-a3a3-6fab922eb3e8.html [https://perma.cc/6V2R-BGWE].

4. See Protect the Attorney-Client Privilege and Right to Effective Counsel, AM. BAR ASS’N (Mar. 31,

2020), https://www.americanbar.org/advocacy/governmental_legislative_work/publications/washingtonletter/

march-washington-letter-2020/bop-032020/ [https://perma.cc/E35U-LLG8].

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