This week, LLM, Inc.’s white paper on the international cloud and attorney-client privilege abroad takes counsel to the United Kingdom, Japan, India and beyond. This BLLAWG post brings the privilege focus back stateside, examining the growing trend among federal prosecutors to read emails exchanged between inmates and their counsel.
A recent article by Stephanie Clifford of The New York Times illuminates the matter. While jailhouse conversations can be incriminating, phone calls between client and counsel have been generally protected. More and more, however, emails are not afforded the same protection. It’s a practice Clifford points out that’s “wholly embraced in Brooklyn, where prosecutors have said they intend to read such emails in almost every case.” Cue the collective defense counsel shudder.
The article cites the Brooklyn case of Thomas DiFiore, a reputed organized crime family member, whose emails exchanged with his lawyer might become part of the prosecution’s case. Other similar jailhouse privilege cases have emerged from Pennsylvania (email), Georgia (email) and right here in Austin, Texas (phone calls).
Is the government overstepping its authority? According to Clifford’s reporting, it is.
“It’s very troubling that the government’s pushing to the margins of the attorney-client relationship.”
— Ellen C. Yaroshefsky, Cardozo School of Law
Prosecutors have asserted that there are other forms of communication available to the defense, like in-person meetings and postal mail — options that defense counsel has characterized as “absurdly inefficient.”
Back in BK, counsel for Mr. DiFiore asked the court to stop the prosecutors’ monitoring practice. The presiding judge sided with the government. Meanwhile, a judge presiding over a different case ruled against the government, forbidding it “from looking at any of the attorney-client emails period.” As Clifford states in her report, federal judges have been divided on this privilege matter.
It’s uncertain what the future fate of attorney-client privilege for email communication will be. For now, in some big houses, snitches get stitches and prosecutors get an in to inmates’ email.