Why the Federal Bureau of Prisons Must Stop Monitoring Confidential Legal Emails

This report by NACDL and the Samuelson Clinic makes the case for Congress to act immediately to protect the attorney-client privilege in emails sent between attorneys' offices and people in BOP custody. It also calls for the BOP to stop its practice of requiring incarcerated clients to “voluntarily” agree that their email will be monitored and that attorney-client privilege will not apply to legal emails, just as the government is required to in other contexts. [Released December 2020]

In this webinar, we address the ethical implications of government surveillance and client communications. Defense lawyers regularly use phone calls, texts and emails to communicate with clients, investigators, witnesses and others associated with their cases. Many of these communications are privileged, yet government surveillance programs can capture and store them. We explore how this happens, and how defense lawyers can keep their communications out of government hands.

In this webinar, we address the ethical implications of government surveillance and client communications. Defense lawyers regularly use phone calls, texts and emails to communicate with clients, investigators, witnesses and others associated with their cases. Many of these communications are privileged, yet government surveillance programs can capture and store them. We explore how this happens, and how defense lawyers can keep their communications out of government hands.

On behalf of NACDL, I urge you to pass the bipartisan Effective Assistance of Counsel in the Digital Era Act, H.R. 546/S. 3524, before the 117th Congress adjourns. The bill ensures that email communications between people in Federal Bureau of Prisons custody and their legal teams are protected with the same privilege as legal visits, letters, and phone calls. This legislation passed in the House with overwhelming bipartisan support in a 414-11 vote. The action by the House and bipartisan sponsorship for the Senate bill indicates a high level of support for this common-sense reform.

Report of Calbar Committee on Professional Responsibility and Conduct, California State Bar Association, March 22, 2006.  The State Bar of California's Standing Committee on Professional Responsibility and Conduct (COPRAC) commentary to Section 8C2.5 of the United States Sentencing Commission's 2004 amendments to Chapter Eight, the "Organizational Sentencing Guidelines."

The attorney-client privilege is fundamental to fairness and balance in our justice system and essential to corporate compliance regimes. Without reliable privilege protections, executives and other employees will be discouraged from asking difficult questions or seeking guidance regarding the most sensitive situations. Available on this page are a variety of letters, testimony and statements on the decline of the Attorney-Client Privilege and Work-Product Doctrine.  

President Carmen Hernandez's letter to Senate Judiciary Committee leadership regarding A bill to amend the Federal Rules of Evidence to address the waiver of the attorney-client privilege and the work product doctrine (S. 2450, 2007).

Comments to the Judicial Conference of the United States Practice & Procedure Committee regarding a proposed amendment to define how federal courts should navigate an emergency suspension of rules (new Criminal Rule 62), such as those posed by COVID-19 and directed by the CARES Act (H.R. 748, 2020).

Testimony of member Kent Wicker to the U.S. Sentencing Commission regarding proposed amendments to the federal sentencing guidelines.

Attorney-client communications federal caselaw and state-specific anecdotal data in New Hampshire

Attorney-client communications federal caselaw and state-specific anecdotal data in Guam

Attorney-client communications federal caselaw and state-specific anecdotal data in New Jersey