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In February 2020, the National Association of Criminal Defense Lawyers asked its membership about how it communicated with clients in custody. The survey focused particularly on lawyers’ ability to communicate with their detained and incarcerated clients. The below data is focused on findings regarding confidentiality, a key requirement of attorney-client communication.

Federal Information

The case law in the Seventh Circuit is markedly different than case law in other circuits that have established the rule, harm standards, and burdens of proof for whether the intrusion into the attorney-client confidential relationship violates the defendant’s constitutional rights. It may be worth noting that the Seventh Circuit appears to be expressly hostile toward broad protections of the attorney-client privilege. _{1} 1 See United States v. Hamilton, 19 F.3d 350, 353 (7th Cir. 1994) (“To the extent that Mr. Hamilton urges us to adopt a prophylactic rule based not on the attorney-client privilege but rather on the need to maintain the adversarial nature of a criminal proceeding, we decline to do so. Any such rule would be in derogation of the truth, much like the attorney-client privilege itself.”); United States v. White, 970 F.2d 328, 334 (7th Cir.1992) (“[T]his circuit has repeatedly held that [the attorney-client privilege] must be strictly confined.”); United States v. Lofton, 957 F.2d 476, 477 (7th Cir.1992) ( “Evidentiary privileges must be construed narrowly to protect the search for truth.”). Also notable are analyses of Weatherford v. Bursey demonstrating that the Seventh Circuit interprets Weatherford to mean that the “interception of a criminal defendant's confidential communications with his lawyer is subject to harmless-error analysis." _{2} 2 Guajardo-Palma v. Martinson, 622 F.3d 801, 806 (7th Cir. 2010). (“In light of these realities, the Supreme Court made clear in Weatherford v. Bursey . . .  that the interception of a criminal defendant's confidential communications with his lawyer is subject to harmless-error analysis; and this must be true, and is, in prisoners' civil litigation as well. E.g., Davis v. Goord, supra, 320 F.3d at 351; Smith v. Maschner, 899 F.2d 940, 944 (10th Cir.1990). Indeed, not only the Prison Litigation Reform Act, but also the far greater rights of pretrial discovery in civil than in criminal litigation, make it unlikely that isolated interferences with attorney-client communications in prisoner cases will block the prisoner's access to meaningful justice.”).

There are a few cases suggesting that the standard for a Sixth Amendment violation because of an intrusion is similar to the other circuits that require a showing of an intentional intrusion and prejudice to the defendant. _{3} 3 See United States v. Castor, 937 F.2d 293, 297–98 (7th Cir. 1991) (““Where the sixth amendment right to attorney-client confidentiality exists, prosecutorial violation of that privilege might lead to reversal of a resulting conviction if the defendant could show prejudice.”) (citing United States v. Kelly, 790 F.2d 130 (D.C.Cir.1986); United States v. Irwin, 612 F.2d 1182 (9th Cir.1980)). In U.S. v. Castor, a defense team investigator was in a relationship with the government case agent and shared privileged information. _{4} 4 Id. However, the defendant could not show he suffered prejudice. The court first noted that even though the government “eschewed any intent” to use the case agent as a witness, that alone did not end the inquiry into whether there is a viable claim. _{5} 5 Id. Even without calling that agent, “it leaves open the possibility that the government acquired privileged information that enabled it better to investigate its case." _{6} 6 Id. (citing United States ex rel. Shiflet v. Lane, 815 F.2d 457, 464 (7th Cir.1987). However, since Castor could not prove that there was any actual prejudice, his claim failed.

Analyses of the Seventh Circuit often  point to United States ex rel. Shiflet v. Lane because the district court put forward a long analysis into an intrusion into the attorney-client relationship. _{7} 7 See § 10:6.Sixth Amendment right to effective assistance of counsel, 2 Attorney-Client Privilege in the U.S. § 10:6 available on WestLaw (citing U.S. ex rel. Shiflet v. Lane, 625 F. Supp. 677, 680 (N.D. Ill. 1985), rev'd, 815 F.2d 457 (7th Cir. 1987)). Important to note, though, is that the Seventh Circuit reversed the district court because the defendant’s Sixth Amendment rights had not yet attached at the time of the alleged misconduct. In that case, a defense investigator provided the police with the accused person’s account of the suspected murder. That information led the police to not only execute a search warrant, based primarily on that information, but also to the filing of a police report that misrepresented who provided the information. _{8} 8 Id. In sum, because of the violation of the attorney-client privilege, the state, “knowing exactly what to look for based on the information [the defense investigator] disclosed, seized physical evidence strongly linking Shiflet to the crime." _{9} 9 Id. The Shiflet opinion analyzes the pertinent case law to determine if a Sixth Amendment violation requires an intentional violation, ultimately deciding that it does not because of the extent of the prejudice to the defendant. _{10} 10 Id. at 686 (“Thus, intentional government intrusion has never been, nor should it be, the only benchmark of a Sixth Amendment claim.”). In short, “here government use of privileged information obtained by windfall causes extreme prejudice to the defendant and renders his right to counsel virtually meaningless, a constitutional problem arises." _{11} 11 Id. While this case may provide helpful language to advocates, its persuasive authority is limited because of the Seventh Circuit’s reversal.

Outside of the intentional-intrusion and Sixth Amendment violation, the Seventh Circuit appears to have some [sparse] case law on other types of claims. First, continuous surveillance of attorney-client conversations may be a problem that could require redress. _{12} 12 See United States v. DiDomenico, 78 F.3d 294, 299 (7th Cir. 1996) (“The hypothetical practice that we have described would, because of its pervasiveness and publicity, greatly undermine the freedom of communication between defendants and their lawyers and with it the efficacy of the right to counsel, because knowledge that a permanent record was being made of the conversations between the defendants and their lawyers would make the defendants reluctant to make candid disclosures. (Totalitarian-style continuous surveillance must surely be a great inhibitor of communication.)” Other opinions have highlighted that certain types of monitoring of conversations could pose a Fourteenth Amendment violation because they may infringe on the defendant’s access to the courts. _{13} 13 See, e.g., Tucker v. Randall, 948 F.2d 388, 391 (7th Cir. 1991) (“Prison officials may tape a prisoner's telephone conversations with an attorney only if such taping does not substantially affect the prisoner's right to confer with counsel); see also Dreher v. Sielaff, 636 F.2d 1141 (7th Cir.1980); see also Martin v. Tyson, 845 F.2d 1451, 1458 (7th Cir.1988), certiorari denied, 488 U.S. 863, 109 S.Ct. 162, 102 L.Ed.2d 133. There is a series of Seventh Circuit cases that deal with when phone access to counsel has been entirely denied. See Tucker, 845 F.2d at 1458; Rodgers v. Lincoln Towing Service, Inc., 771 F.2d 194, 199 (7th Cir.1985).

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