Standard E04.03.01: Providing and Regulating Attorney Visits

By Tate McCotter, NIJO Executive Director

KEY ISSUES:

You walk into work and on your desk sits an envelope from your local ACLU managing attorney.  The enclosed letter briefly introduces an attorney, his credentials and goals of the local chapter in protecting inmate rights.  Then he writes a request for legal visits with a few individuals that happen to be housed at your jail.  In the letter he briefly quotes case law of the right to do so along with copies of current attorney licenses and bar cards for himself and others that he will be bringing with him on the requested visit.  Finally, the letter closes with a statement like this:

“If you deny this request for any reason, please provide a written statement detailing the basis for such denial.”

Game on!  Do you respond?  If so, how do you respond?  Because he is an attorney does he have the right to visit these inmates legally?  What if an attorney wants to come at 2am?  What does your policy say and are you confident it will be upheld in court?

NIJO is contacted about every day by jail administrators and sheriffs across the United States seeking legal-based information or expert witness work about a potential lawsuit or active litigation pertaining to their facility and operations.  One of the topics that repeatedly comes up is centered around the rights of attorneys.  In fact, we had five on this topic alone this past month.  For many facilities, the attorney-client privileges are blurred by the unique requests of attorneys – leaving administrators to carefully decipher what is acceptable and allowed under constitutional rights and what is not.  With it comes a decision to stick to the position taken being prepared to defend it.   This can be challenging – there are often undertones from attorneys and others who claim to have attorney-client privileges of “if you don’t do it right we are coming after you!”  Therefore, it is critical that administrators understand and follow what is actually required by law and what is not so they can make wise policy decisions as it relates to attorney visits.

OPERATIONAL APPLICATION:

The first issue that needs to be addressed is that of who is the attorney of record.  While it is generally true that inmates are entitled to attorney visits as part of their access to court and counsel1, attorneys do not have the right to visit inmates who have not asked for their assistance.    The attorney of record is determined by the inmate – who the inmate personally recognizes as his legal-assistance provider.  This information should be provided by the inmate as soon as it is known and updated thereafter as necessary.  Contrary to what some attorneys think, it is not an established right of any attorney to meet with whomever they wish and whenever they wish who is incarcerated.  Imagine the burden placed on correctional administrators if this was the case.  With unfettered unsolicited access, ambulance chasing attorneys would fight amongst each other, firm against firm, at the jail’s expense to obtain more inmate clients, creating additional unnecessary security risks and opening potential litigation floodgates on unrelated issues.

Groups such as the ACLU, Prison Legal News, Southern Poverty Law Center and other inmate advocate groups are generally not listed by the inmate as the attorney of record.  Such requests by these organizations, such as the example given above, are often unsolicited and without merit.  They usually result in a fishing expedition at the jail’s expense.  Certainly an administration can allow them access to the inmates, but they do not have to do so under law.  It is important to note that a recent decision out of the 6th Circuit Court of Appeals (applicable only to Michigan, Ohio and Illinois) declared ACLU and PLN mail correspondence to be “legal” mail2; however, visitation was not part of the decision and is not applicable to this topic.  It is interesting that same court ruling declared the American Bar Association and correspondence from a county clerk to be personal mail in trying to defend its decision on the attorney-client relationship!

Here are some key points to remember when considering your policies as it relates to attorney visits:

  • Define exactly what the attorney of record is for reference in your policies. Clarification of that term is useful in determining related decisions and may be very useful if ever challenged in court.

 

  • The recognized attorney of record may conduct authorized legal visits to the inmate he or she represents personally. However, the attorney may also send a paralegal or other attorney(s) on their behalf.  This practice has been upheld and recognized by the Supreme Court in a case where paralegals and law students under the direction of the attorney of record showed up for legal visitation unaccompanied by the attorney of record.3   Before granting access, a facility may conduct background procedures of the authorized legal representation.

 

  • Document who the attorney of record is per the inmate and keep the information on file and updated. Of course the inmate can change their attorney of record, but often issues arise when an attorney who is not of record is making the challenge for access to visitation.  Those can be denied per policy.  If later an inmate provides a grievance that challenges the attorney of record a facility can certainly accommodate.   This option puts the representation back into the hands of the inmate rather than the attorneys and documentation is provided by the inmate – not the attorney, which is also helpful in a court setting.

 

  • Operationally, the jail may regulate the visitation process for safety and security measures. These may include the following:
    • Conduct legal visitation at reasonable hours. Visits should not take place during sleeping hours.  It keeps that inmate from sleeping and can disturb other inmates.  It can also cause operational issues at night which is generally limited in staffing.
    • Restrict legal visitation when inmates are being served meals or other times that would substantially interfere with jail operations during peak activity. Such visits could prevent an inmate from receiving a meal.  Attorneys (and inmates) may not understand thinking it won’t be hard to reschedule the meal.   Jails have limited resources with tight schedules and do not offer 24-7 cafeteria buffets with room service for special accommodations if meals are interrupted by unscheduled attorney visits.
    • A temporary lockdown or other legitimate penological interests may restrict, regulate or postpone a visit.
    • Security procedures still apply for attorneys visiting just as they do for inmates, staff, visitors and others. Attorneys can be required to submit to reasonable search processes, such as metal detectors, inspection of brief cases and, if there is sufficient justification, pat-down searches.Numerous cases are recorded where attorneys have been involved in smuggling contraband (everything from drugs, porn, and weapons).
    • Attorneys can be banned from contact visits, particularly if the administration can show cause of action due to security threats or violation of posted jail rules and regulations.5

Some flexibility may be authorized in exigent circumstances to accommodate the situation with an inmate.  Administrators have discretion for such circumstances to accommodate without compromising the safety and security of the facility.6

 

  • No monitoring or recording of visits between inmates and their attorneys should occur. Policies should make it clear that attorney-client visits are privileged and should be conducted in a manner that does not allow the conversation to be overheard.  Eavesdropping on inmates’ visits with attorneys could potentially chill the communication necessary for the inmate to be properly represented.7  Visual observations of attorney visits, if done from a distance which does not allow eavesdropping, furthers the jail’s safety and security interests without infringing on the communication and privacy of the visit.

REFERENCES:

  1. See Legal Based Guideline G01.03.01  Communication with Counsel.   See generally Bounds v. Smith, 430 U.S. 817 (1977); Wolff v. McDonnell, 418 U.S. 539 (1974).
  2. ACLU v. Livingston County, et. al 14-1617 (6th Circuit 2015). (This case centered originally on the use of postcards)
  3. Procunier v. Martinez, 416 U.S. 396, 419 (1974)
  4. Rhode Island Defense Attorneys’ Association v. Dodd, 463 A.2d 1370 (R.I. 1983); State v. Staab, 430 So.2d 1370 (R.I. 1983).
  5. McMaster v. Pung, 984 F.2d 948 (CA8 1993) (Female attorney banned from contact visits as a result of having “intimate” contact with an inmate)
  6. Turner v. Safley, 482 U.S. 78 (1987)
  7. Wolff v. McDonnell, 418 U.S. 539, 577 (1974).
DISCLAIMER:
The training materials provided are for use only within the scope of your jail and may not to be distributed otherwise without written permission by NIJO.  The information contained herein is to be used solely for training purposes and shall not be construed as legal advice.  Users of these materials should consult legal counsel to determine how the laws of their individual jurisdiction affect the application of these materials and guidelines to their individual circumstances.

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