Prison & Jail Call Communication Systems in Kansas

Attorney-client communications case law and legislation in Kansas

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Tenth Circuit

The Tenth Circuit appears to be somewhat of an outlier on the elements required for establishing a Sixth Amendment violation. Like the majority of other circuits, an intentional intrusion is required.[1] Inadvertent disclosures, like the accidental receipt of recorded attorney-client calls, usually cannot form the basis for a constitutional violation.[2] However, in Shillinger v. Haworth, the court held that when there is no “legitimate law enforcement purpose” for purposefully intruding into the attorney-client relationship, prejudice to the defendant must be presumed.[3] In Shillinger “the prosecutor, by his own admission, proceeded for the purpose of determining the substance of Haworth's conversations with his attorney, and attorney-client communications were actually disclosed.”[4] What remains unclear from Shillinger is what the appropriate remedy is, though the court posits that potentially appropriate remedies could range from dismissal of the indictment to merely requiring a different prosecutor.[5]

Where the prosecution has no justification nor any “improper motive” for the intrusion, the defendant must establish prejudice. [6]

In Rodriguez v. Zavaras, the district court noted that the Tenth Circuit’s standard for presumptive prejudice must demonstrate that not all intentional intrusions into the attorney-client relationships are prejudicial. In this case, the petitioner contended that the government’s admission of liability in the civil case (in which it conceded there was improper monitoring of legal visits in the jail) established an improper motive and relieved him of his obligation to demonstrate prejudice. The court disagreed, finding the admission established that there was only an intrusion and did not go to the prejudice finding.[7] Ultimately, the court held that there was no prejudice because the petitioner did not establish that the communications were received by the prosecuting team nor that the state obtained any benefit. [8]  However, the petitioner would fail anyway because there is no Sixth Amendment right to counsel in post-conviction proceedings.[9]

The Tenth Circuit has expressly cabined the attorney-client privilege to an evidentiary privilege and not to a constitutional right. This is important in cases in which the interference with attorney-client communications occurs outside of a criminal trial.[10] In a section 1983 case, a prisoner alleged a Sixth Amendment violation based on a Department of Corrections Guard interfering with his phone call with counsel. However, because the plaintiff was allowed to finish his call and cannot otherwise establish a harm (such as an interference with his Sixth Amendment right to trial during a criminal case), his claim did not implicate the Sixth Amendment and failed.[11]

[1] Shillinger v. Haworth, 70 F.3d 1132, 1139 (10th Cir. 1995).

[2] United States v. Lujan, No. CR 05-0924 RB, 2011 WL 13210274, at *2 (D.N.M. June 16, 2011) (“Nor do I find anything improper on the part of the government since Mr. Schoenberg and Defendant were aware their conversations were not “secured”/“attorney-client” calls, and no confidences pertaining to the defense were revealed.”).

[3]  Id.

[4] Shillinger, 70 F.3d at 1139.

[5] Id.; but see United States v. Orman, 417 F. Supp. 1126, 1134 (D. Colo. 1976) (but note that this case was decided before Weatherford).

[6] Rodriguez v. Zavaras, 42 F. Supp. 2d 1059, 1083 (D. Colo. 1999). This petitioner succeeded in his civil 1983 action, but it is not accessible via WestLaw or Bloomberg. The cause number is No. 1:92-cv-00425-EWN

[7] Rodriguez, 42 F. Supp. 2d at 1084–85.

[8] Id. at 1086–87.

[9] Id.

[10] See Bradt v. Smith, 634 F.2d 796, 800 (5th Cir. 1981) (“[T]he attorney-client privilege constitutes an evidentiary privilege that is secured by state law, and not by the Constitution or laws of the United States. As a creature of state law, the attorney-client privilege cannot be asserted as a basis for recovery under § 1983.”) (citations omitted).

[11] Toles v. Oklahoma Dep't of Corr., No. CIV-17-150-D, 2017 WL 1957286, at *4 (W.D. Okla. Mar. 28, 2017) (citing Weatherford v. Bursey).

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