Federal Court Rules that Recorded Prison Calls By Inmates to Attorneys are Not Privileged

Author: Theresa Concepcion

A recurring point of contention in Section 1983 litigation is whether recordings of a current or former inmate’s phone calls to an attorney remain privileged. In both Fourth and Sixth Amendment cases, courts have held that attorney-client privilege does not exist when an inmate has notice that calls are being monitored.

Most recently on February 21, 2020, the Western District of Wisconsin in Lieberman v. Portage County held that when an inmate received notice that calls made in prison were being recorded, the inmate did not have a reasonable expectation of privacy in any calls made to his attorney. Therefore, the recording and monitoring of such calls did not violate attorney-client privilege. Slip Copy 2020 WL 869232. The Lieberman decision is consistent with holdings from courts in different jurisdictions. Moreover, since the Supreme Court has not “directly answered the question of whether the Fourth Amendment protects attorney-client conversations in the jail or prison setting,” the Lieberman decision is persuasive authority in any federal circuit because it provides the most up-to-date analysis on Fourth Amendment protection in the prison context.

The Supreme Court has held that the “right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order.” Hudson v. Palmer, 468 U.S. 517-527-28 (1984). In Lieberman, the court noted that all inmates were informed prior to each call, and via handbook, that calls were recorded. At the time of the recordings, the prison had no mechanism to flag attorney calls as private. Therefore, prison officials did not intentionally attempt to violate any prisoner’s attorney-client privilege because attorney calls just happened to be “swept up” with the rest of the recorded calls. As a result, the Lieberman court held that a prisoner with notice that all calls are being recorded does not have an objectively reasonable expectation of privacy in a call with his attorney.

This decision is in line with the Eighth Circuit, which has held that attorney-client phone calls from prison were not protected because “the presence of the prison recording device destroyed the attorney-client privilege. Because the inmates and their lawyers were aware that their conversations were being recorded, they could not reasonably expect that their conversations would remain private. The presence of the recording device was the functional equivalent of the presence of a third party.” U.S. v. Hatcher, 323 F.3d 666 (8^th Cir. 2003). Similarly, the Seventh Circuit has held that the Fourth Amendment did not give a federal prisoner’s sister-in-law a reasonable expectation of privacy in telephone conversations she had with the prisoner. United States v. Sababy, 891 F.2d 1308, 1329-30 (7^th Cir. 1989). The Seventh Circuit has also held that it was not a violation of attorney-client privilege for a guard to read correspondence between an inmate and their lawyer. Guajardo-Palma v. Martinson, 622 F.3d 801 (7^th Cir. 2010).

In applying Lieberman, litigants can expect courts to undergo an intense fact-analysis to determine whether inmates were informed that calls were recorded and whether the jail or prison had a mechanism for keeping inmate calls with attorneys confidential. Should a court find that sufficient notice was given, it is likely that an inmate’s calls with an attorney will not be considered privileged.