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Proposal Would Protect Confidentiality of Attorney-Inmate Emails

Jan. 8, 2020, 9:34 PM

Federal inmates would be able to send emails to their attorneys without concern that prison officials might turn them over to prosecutors under bipartisan legislation reintroduced in Congress on Jan. 8.

The measure is sponsored by Georgia Republican Doug Collins, the top Republican on the House Judiciary Committee, and Rep. Hakeem Jeffries (D-N.Y.), who sponsored a previous version in 2015.

A press release announcing the bill said that it “would bring prison regulations into the 21st century by applying the attorney-client privilege to electronic communications sent or received through the Bureau of Prisons’ (BOP) email system.”

The release notes that other forms of communication, like telephone calls, are covered by the privilege.

But inmates who use the email system at federal lockups “must currently consent to government review of their attorney-client communications, the contents of which can be accessed by prosecutors,” it said.

The American Bar Association’s Model Rule of Professional Conduct 1.6. lays out the principle of confidentiality. The comments to the rule say that the prohibition on attorneys revealing client confidences without client consent “contributes to the trust that is the hallmark of the client-lawyer relationship.”

Clients can seek legal assistance and “communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter,” the comments say.

The press release notes how much of a burden it can be for inmates to communicate with their attorneys. “Even in metropolitan areas like New York, it can take an attorney more than three-hours round trip to travel to a detention facility to visit a client,” it said.

“Email is the most efficient way for an attorney to communicate with an incarcerated client and should enjoy the same protection as telephone calls and other forms of private communication,” Jeffries said in the release.

According to a Republican aide familiar with the legislation in the Democratic-led House, Collins and Jeffries have worked on criminal justice reform for several years, including The FIRST Step Act, which aims to reduce the size of the federal prison population.

The prison email act has broad support from organizations including American Civil Liberties Union, American Bar Association, Americans for Prosperity, #cut50, Due Process Institute, and Faith & Freedom Coalition.

To contact the reporter on this story: Melissa Heelan Stanzione in Washington at mstanzione@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; Rebekah Mintzer at rmintzer@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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