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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

Weatherford v. Bursey is instructive in analyzing Sixth Amendment violations in the First Circuit._{1} 1  See United States v. Mastroianni, 749 F.2d 900, 907 (1st Cir.1984) (quoting Weatherford, 429 U.S. at 558, 97 S.Ct. at 845) (holding that a defendant must show an intentional government intrusion into their attorney/client privilege as well as a “realistic possibility” of prejudice to the defendant or benefit to the State as a result of the government's intrusion.). To make a prima facie showing of prejudice, the defendant must prove that confidential communications were conveyed as a result of the intrusion._{2} 2  See United States v. DeCologero, 530 F.3d 36, 64 (1st Cir. 2008) (explaining that where “no confidential attorney-client information was relayed to, or obtained by, the prosecution, . . . [t]he defense suffered no prejudice,” and thus no Sixth Amendment violation. Upon such proof, the burden shifts to the government to show that there has been and there will be no prejudice to the defendants as a result of these communications._{3} 3  Mastroianni, 749 F.2d at 907. “The burden on the government is high because to require anything less would be to condone intrusions into a defendant's protected attorney-client communications.”_{4} 4  Id. The advantage that the government gains in the first instance by insinuating itself into the midst of the defense meeting must not be abused._{5} 5  Id. 

In Mastroianni, the government authorized one of their informants to attend a meeting with two co-defendants and their attorneys. Before the meeting, the informant was instructed to avoid discussing the criminal case at hand “if possible.”_{6} 6  Id. at 905. Following the meeting, the government debriefed the informant. The first circuit found no government intrusion in this case because the informant was invited to the meeting._{7} 7  Id. The Court further explained that the preservation of an informant's cover and safety was a permissible rationale for an informant's attendance at a defense meeting._{8} 8  Id. (citing Weatherford, 429 U.S. at 557). Finally, the First Circuit held that there was no prejudice and therefore no 6th Amendment violation after the government demonstrated that it did not use any information that was impermissibly obtained from debriefing the informant._{9} 9  Id. at 908. 

In U.S. v. Novak, the defendant brought a claim for ineffective assistance of counsel based on his attorney failing to object to admission of phone call recording between defendant (who is an attorney) and a prior client of his._{10} 10  U.S. v. Novak, 453 F.Supp.2d 249 (D. Mass. 2006). Their privileged calls were unintentionally recorded and heard by jail officers because the telephone vendor, Securus, failed to enter the attorney (now defendant)’s phone number into the database of MA lawyer’s phone numbers to ensure that those calls would be unmonitored. The U.S. District Court for the District of Massachusetts held that the recording of the calls should be suppressed because the attorney and client participants had a reasonable expectation of privacy in this situation under the Fourth Amendment. On appeal, however, the 1st Circuit reversed, explaining that “[n]o doubt, the monitoring of Holyoke's calls to his attorney presents a significant Sixth Amendment issue. . . That significance, however, does not arise out of the Fourth Amendment's prohibition against unreasonable searches and seizures. Instead, it is attached to the protections that the Sixth Amendment affords to the attorney-client relationship.”_{11} 11  U.S. v. Novak, 531 F.3d 99 (1st Cir. 2008). 

In cases of recorded attorney-client phone calls placed by incarcerated defendants, the success of a Sixth Amendment claim varies by state. In Maine, for example, when a defendant placed outgoing calls to his attorney on a recorded phone line, where the DA stopped listening to the recordings when it was clear that defendant was speaking with counsel, and where the DA would not be using those recordings for their case in chief, there was no 6th Amendment violation._{12} 12  See U.S. v. Worthy, 2012 WL 1714692 (D. Me. 2012). “If he had something confidential to say, [the defendant] had only to request that his lawyer return the call on the unmonitored, unrecorded line.”_{13} 13  Id. at *2. In Massachusetts, a state statute requires that jails not monitor or record attorney-client telephone conversations._{14} 14  103 Mass.Code Regs. 482.08 (1994) (Telephone calls to pre-authorized attorney numbers, consular officer/ diplomat numbers, or the Global Access numbers, shall not be subject to telephone monitoring or recording.). 

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