On March 8th, 2021, NACDL's Corrections Committee released an important new online resource, “The State of Prison & Jail Communication Systems,” as well as a separate manual, “How to Navigate the Federal Prison System.” Given the ongoing COVID-19 pandemic, both the online interactive map and guide are especially crucial and timely resources for attorneys, family members of incarcerated individuals, and the public.

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.

May we comply with a requirement to submit confidential attorney-client communications for review by a “Privilege Team” composed of law enforcement and intelligence officers without judicial oversight, and the provisions barring us from communicating on certain topics with our clients, whether or not those topics are directly related to our representation, consistent with our ethical obligations?

Whether the federal defender staff lawyers’ obligations to preserve client confidences and other confidential, privileged materials pursuant to Model Rules of Professional Conduct, Rule 1.6 is violated when a third party, the Administrative Office of the United States Courts (AO), takes over and manages the technology systems of the federal defender office, including specifically federal defender e-mail, case management programs, and statistical systems, that contain confidential and privileged information.

Whether the practice of requiring defendants to check in with their lawyers weekly violates the criminal defense lawyer’s duties of confidentiality and client loyalty and the attorney-client privilege. And, when asked the next time, how should the lawyer respond?

Whether it goes against attorney-client confidentiality to share time sheet records.

Brief of Amici Curiae Minnesota Board of Public Defense, Minnesota Association of Criminal Defense Lawyers, and National Association of Criminal Defense Lawyers

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 policies, press releases and other guidance from various government agencies relating to the Attorney-Client Privilege and Work-Product Doctrine.  

New Attack on Counsel Access at GTMO to Be Heard Friday -- Washington, DC (Aug. 17, 2012) – In the latest attack on attorney-client relationships at Guantanamo Bay, the U.S. Department of Justice now takes the position that Guantanamo detainees whose habeas corpus cases have been terminated no longer have the right of access to their lawyers and vice versa. Under a new “memorandum of understanding,” attorney-client visits and communications are permitted at the sole discretion of the Commander, Joint Task Force-Guantanamo.

Back on November 4, 2022, NACDL’s then President Nellie L. King wrote to Director Peters to amplify the association’s call for (1) permitting privileged and unmonitored email communications between attorneys and clients in both pretrial and post-conviction settings and (2) for a “help desk” to facilitate scheduling of privileged attorney-client telephone calls.

We have seen the DOJ Advisory Group’s July 20, 2023, Report and Recommendations... In general, we think many of the recommendations are sensible. But some of them are troubling.

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]

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."