When Does Monitoring Defendants and Their Lawyers Cross the Line?

Abstract

Recently, government officials have been intruding into attorney-client relationships in unexpected ways. These intrusions have ranged from the surreptitious recording of client attorney visits in prisons and jails, to the secret acquisition of attorney work product by a private company working for the FBI. These incidents raise important and troubling issues concerning government officials prying into attorney-client relationships and threatening the Sixth Amendment right to counsel. The incidents also raise a number of ethical issues. In this ethics column, we explore what is protected by attorney-client privilege, work product, and client confidentiality. We also analyze the obligations of lawyers advising jails, prisons, and other entities or individuals on behalf of the government concerning client confidentiality, as well as the ethical obligations of prosecutors who come into possession of confidential information.

Keywords: Ethics, Legal Ethics, Professional Responsibility, Prosectors, Jails, Prisons, Attorney-Client Privilege, Attorney Work Product, Client Confidentiality

JEL Classification: K14, K19, K39, K41, K42