Posted on 30 Aug 2011
The United States Court of Appeals for the Second Circuit recently ruled in US v. Rodriguez, 10-2724, that an inmate who knew that his telephone call was being recorded did not have a “reasonable expectation of confidentiality” when he relayed a message for his attorney through his sister. As a result, the communication, which concerned whether the inmate should plead guilty to felony drug charges, was deemed admissible at trial for the sole purpose of demonstrating the inmate’s “consciousness of guilt.”
In its opinion, the Second Circuit observed that the attorney-client privilege shields communications “(1) between a client and his or her attorney (2) that are intended to be, and in fact were, kept confidential (3) for the purpose of obtaining legal advice.” Because the telephone conversation between Mr. Rodriguez and his lawyer was recorded, however, he was unable to satisfy the second prong of the foregoing test that governs the privilege. The Court noted, “[t]he fact that the call was being recorded amounts essentially to the presence of an unsympathetic third party [the Bureau of Prisons] listening in. Rodriguez’s awareness of the presence of this third party, and his decision to nevertheless relate to his sister the substance of the communication directed to his attorney, demonstrates an absence of the affirmative action required to preserve the confidentiality of his statements.”
The Fourth Circuit, whose rulings are binding in North Carolina’s federal district courts, has not yet squarely addressed this issue. Although it was confronted with similar facts in U.S. v. Lentz, 524 F.3d 501 (4th Cir. 2008), the Court declined to establish a bright-line rule. In that case, the issue before the Court was whether an inmate’s recorded telephone discussions with his lawyer about a prospective murder-for-hire plot were shielded by the attorney-client privilege. Rather than ruling on whether the recording of the conversation itself waived the privilege, the Court held that the inmate made the telephone calls “for the purpose of furthering, advancing, or promoting . . . criminal activity and not . . . seek[ing] legitimate legal advice[.]” Thus, the conversation was not protected by the privilege.
Although the Fourth Circuit has not expressly ruled that a recorded conversation between a lawyer and his or her inmate client results in a per se waiver of the attorney-client privilege, federal inmates will be hard-pressed to argue that the privilege applies when the lack of confidentiality is made clear either in writing (next to the telephone or on jail walls) or by an operator at the initiation of the phone call. This is even more so, where the Fourth Circuit has stated that “[a]ny disclosure inconsistent with maintaining the confidential nature of the attorney-client relationship waives the attorney-client privilege.” U.S. v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982).
The obvious takeaway from these rulings is for both inmates and lawyers alike to limit telephone communications to matters that do not have any bearing on the inmate’s innocence or guilt, and to discuss more sensitive issues during live meetings.