Attorney-Client Privilege Questioned After Inmate's Call Is RecordedJames Cohen on NBC New York, February 04, 2014
Criminal defense lawyer Steven Raiser had always assumed that conversations between him, his staff and his clients who are in prison were strictly confidential.
That’s why he was alarmed when a prosecutor in court handed him a tape of his client’s jail calls that included one made to his own law office.
"The fact is, there’s an attorney-client-privileged phone call. The district attorney is not supposed to then use those communications,” Raiser said.
A spokesman for Nassau District Attorney Kathleen Rice said attorney-client calls are supposed to get screened out by the jail -- and usually are. The office said the phone number the inmate called in this case was not on a list of attorney numbers the jail screens out when it records calls.
Spokesman Shams Tarek said it's not clear why this phone number was recorded.
“When we listen to a call, we stop listening if and when we realize it's a privileged call,” said Tarek. “We work diligently to ensure that all confidential statements between a client and his or her attorney remain private, and that attorney-client privilege is respected at all times.”
The criminal case in question involved a witness tampering charge against the inmate who called Raiser's office from the jail.
Tarek said he could not comment specifically on the witness tampering case, since it was later dismissed and sealed. But he said it “presented a number of issues regarding the attorney-client privilege and the exceptions that apply to that privilege.”
Nassau County Judge George Peck never ruled on whether the call from jail was privileged because he refused to enter them as evidence based on an unrelated issue.
A spokeswoman for the Nassau County Correctional Facility did not return calls seeking comment.
Raiser said he is not comforted by prosecutors’ assurances that they hang up if a call is privileged. He said prosecutors should have to subpoena jail calls just like defense lawyers do, showing a judge that they have reason to believe the calls are relevant to the case.
Legal experts are divided over how absolute the attorney-client privilege is. They agree that there are exceptions to the rule -- for example, if a client were conspiring with his lawyer to commit a crime, or if he said something to his lawyer in front of a large group of people, so he had no expectation of privacy.
Jim Cohen, a criminal law professor at Fordham Law School, said because there is a sign at the jail alerting inmates that their calls are recorded, all their calls -- even those to their lawyers -- may be fair game.
"The government, whether it be federal or state, takes the position that … 'we told you that we would be listening, and we told you that we would be using the contents of the conversation. So you really have no complaint at all,'" Cohen said.
But Richard Klein, of Touro Law School, disagreed. He says what happened in this case is totally inappropriate.
“It’s not amorphous," Klein said. "The attorney-client is absolute. It’s one of the basic aspects of our criminal justice system that what a defendant says to his or her attorney is confidential."