Attorney-Client Phone Calls with Custodial Clients
In order to keep communications with detained clients confidential, counsel must affirmatively “privatize” their phone numbers with every detention center from which client calls are expected.
Send privatization requests on letterhead by email or fax to the facility. List all phone numbers (front desk, direct lines, cellphones, etc.) that clients may call and ask for written confirmation that the numbers have all been privatized. An attorney must sign this letter.
Even after privatizing, assume that calls to or from a counselor’s office will be, at the very least, monitored by the counselor (and therefore any right to confidentiality in at least the client’s end of the calls may be deemed waived).
Remember to send a new privatization request for every new number that clients may call (if, for instance your number changes or you add personnel to your firm with new numbers).
Providing Discovery to Custodial Clients
Electronic custodial discovery review is the standard practice in the District of Kansas. Through this process, detained clients may review electronically stored information (ESI) without the presence of counsel and without the numerous problems created when hard copies of discovery are floating around a detention center. The FPD has worked with the U.S. Attorney’s Office, U.S. Marshals, and the Court to provide all detained clients—whether represented by the FPD, CJA counsel, or retained counsel—electronic access to discovery in jail.
At USP-Leavenworth, clients have access to facility equipment to review discovery sent in on an encrypted, password-protected flash drive. Counsel must carefully read, fill out, submit, and comply with the USP Leavenworth Electronic Discovery Authorization Form. ESI sent to USP-Leavenworth via this form must consist solely of actual discovery (including reciprocal discovery).
In the local jails, the FPD has provided laptops, configured in agreement with the government, that allow clients to securely review discovery sent in on an encrypted, password-protected flash drive. Any CJA or retained counsel can send discovery to the jails for review on the FPD laptops. ESI sent to the local jails may include actual discovery (including reciprocal discovery), as well as documents being considered for reciprocal discovery.
You should not need a court order for the facility to allow your client to review ESI in custody. However, if the facility balks, or is not giving your client sufficient time or privacy to review the discovery, let us know and we will brainstorm solutions and share a sample motion and order with you.
We recommend the following protocol:
- Load the discovery onto a flash drive. Comply with any protective orders and review the discovery carefully to make sure it is appropriate to send into a jail setting whether or not there is a protective order. For example, sometimes cellphone downloads will include photos that qualify as contraband in the facilities. There is no need to redact discovery, unless there is a case-specific protective order that explicitly requires redaction. In those rare instances, just don’t include that discovery for electronic review.
- Encrypt the flash drive using BitLocker (an encryption feature included with Microsoft Windows), and create a unique password (do not use the same password for multiple clients) by following these instructions. Clearly mark the flash drive with your client’s name and the case number.
- Ask the facility how it wants you to deliver the flash drive, and to whom.
- Provide the flash drive password to your client with instructions not to share it (instructions not to share it – Spanish) with anyone else, along with other cautionary advice. In a separate document, provide your client with instructions for accessing (instructions for accessing – Spanish) the discovery. This will allow your client to take the instructions to the laptop without having to also take the password.
- Retrieve the flash drive from the jail once the case is complete.