The white-collar bar is a varied and wonderful thing.
On one hand, there are the large-firm players — the FCPA mongers and the folks doing criminal antitrust work who fly all over the globe representing clients in lucrative conference room litigation that will rarely see a courtroom.
These cases are well-funded. Even if the client has a higher chance of French kissing the Chief Justice during the State of the Union address than of being indicted, as long as he’s indemnified by a large company, many firms will do everything they possibly can to be completely and fully ready for an indictment that will never come. I haven’t yet heard of a mock jury for a client in an investigation that isn’t going to be indicted, but I think that’s only because no one has thought it up yet. (And, to my friends currently representing such indemnified clients, you’re very welcome for the suggestion.)
For these folks, attorney-client privilege exists and is relatively easy to preserve. It’s good to be pre-indictment and it’s good to be indemnified.
But, for the rest of the folks accused of white-collar crimes, our Department of Justice is only too happy to make folks choose between a preserved attorney-client privilege and the Sixth Amendment.
First, here’s how much of the rest of the white-collar bar works in indicted cases with non-indemnified clients. Some rare folks have a lot of money to spend on a defense, and can pay for everything reasonably necessary. Let’s set those folks aside.
What you’re left with are people in three categories: (1) people who are able to pay reasonably for a defense, but are cost-conscious because every dollar spent comes out of their retirement, or out of their kid’s college fund, or from their family; (2) people who really can’t afford to pay for a reasonable defense, but don’t qualify for court-appointed counsel; or (3) folks who have court-appointed counsel. If you’re in group (3), pray. Because unless you get a federal public defender or one of the really good CJA lawyers, you may be in a sad spot.
Ok, now let’s suppose that you are locked up.
Your lawyer is working on your appeal while you’re in the Bureau of Prisons. You’re not lucky enough to be dripping with cash. You want a good defense, even a very good defense, but you’re also watching your dollars.
Or, perhaps you’re CJA and a judge is watching your lawyer’s hours — not being terribly eager to pay for much beyond the basic package when it comes to representation.
For whatever reason — suppose you read about the Sixth Amendment’s right to counsel back in junior high — you decide that you’d like to talk to your lawyer about your case.
What are your options for how you talk to your lawyer, in light of how the BOP handles things?
In my experience, you have four:
(1) You can have your lawyer visit you. This is a lovely option — there’s no substitute for face-to-face contact. The only trouble is that you are likely in the middle of nowhere, and it will cost thousands of dollars for your lawyer to schlep out to visit you in whatever red state you’re housed in. And if it’s a CJA case, you’re facing an uphill battle to get a judge to pay for that.
(2) You can set up a legal call. Here’s my experience with legal calls at most BOP facilities (experiences vary). My admin person calls every day for two weeks and leaves a voicemail each time. Finally, a counselor answers and schedules a legal call. Maybe two-thirds of the time that results in an actual legal call when scheduled. When it does, the counselor stands next to your client while you talk to him, then the counselor abruptly ends the call after 5 to 15 minutes. Some places are better, many are worse. I was told once by a BOP counselor that their facility “doesn’t do legal calls.” If I want to talk to my client, I had to go to the prison to visit him. The prison was in Kentucky. Way to make the Sixth Amendment come alive, Department of Justice!
(3) You can send letters. It’s nice. It’s 19th century. It takes two weeks to process through the jail’s mail system and is a tremendously hard way to explain detailed legal concepts to nonlawyers.
(4) You can use CorrLinks — the prison email system. Think of it as AOL, except instead of being for old people, it’s for people in a federal prison. It’s fast, it’s free, and it comes with a notice saying the prison can read your email.
Let’s assume that defense lawyers need to communicate with their clients about a complicated matter of some urgency.
Like a court case.
As between the expensive and time consuming flight to Kentucky, the multi-week scheduling nightmare of setting up a call to the prison, writing the dullest epistolary novel in the history of writing, or using email, what do you think most clients will do?
That’s right, they’ll use email. And email in prison has the “we will listen to you” language, which, one could argue, destroys privilege.
Why are they pushed into using potentially non-privileged email with their lawyers?
Because the Bureau of Prisons — an arm of the Department of Justice — set things up that way. If BOP had better phone procedures, lawyers could talk to their clients faster. If BOP had an email system just for lawyers — say, cross-checked with court dockets or state bars to make sure the lawyers were legit — lawyers could email securely with their clients.
But the Department of Justice isn’t so interested in those modest accommodations to the Sixth Amendment.
Instead, the Department of Justice would rather force folks to choose between risking a waiver of the privilege or not being able to communicate effectively with their attorneys.
And the predictable thing is happening as a result — as the New York Times reports, federal prosecutors are reading emails between attorneys and their clients in white-collar cases.
It’s like representing a bedridden woman in a divorce case where her husband has bugged the only room she can be in and told you about the bugging. Sure, you could communicate through written notes passed back and forth, but should you have to?
What does this all have to do with money?
Because money is the reason at least one federal prosecutor is offering for why it’s ok:
[United States District Court Judge Dora L. Irizarry] seemed to take particular offense at an argument by a prosecutor… who suggested that prosecutors merely wanted to avoid the expense and hassle of having to separate attorney-client emails from other emails sent via [CorrLinks].
That’s right — DOJ says it gets to read attorney client emails, because it would be too expensive to cull non-attorney client emails!
So, it’s too expensive for most people accused of a crime to have a lawyer come out for a meeting — which is the only really effective way to communicate in real time for any meaningful length because of the way DOJ has set up communications at our federal prisons. And those DOJ policies force people to use the CorrLinks email system where, because DOJ doesn’t have any money, it has to read your email with your lawyer.
Man, DOJ must be hoping they never get fully funded.
Thankfully Judge Irizarry rejected this argument, responding to the prosecutor who made it that:
“That’s hogwash,” Judge Irizarry said. “You’re going to tell me you don’t want to know what your adversary’s strategy is? What kind of a litigator are you then? Give me a break.”
She barred the government “from looking at any of the attorney-client emails, period.”
Matt Kaiser is a partner at The Kaiser Law Firm PLLC, a boutique litigation firm in Washington DC, which handles government investigations, white-collar criminal cases, federal criminal appeals, and complex civil litigation. You can reach him by email at mattkaiser@thekaiserlawfirm, and you can follow him on Twitter: @mattkaiser.