In the wake of the Sept. 11, 2001 terrorist attacks on
the United States, a variety of security measures were enacted and implemented
in an effort to prevent a recurrence of that horrific day. Some of the
security measures are relatively mundane (long lines and random inspections
at airports and public buildings) and have been so readily incorporated
into 'post-9/11' life that it is hard to remember what it
was like before. Other measures are considerably more significant and
have the possibility of fundamentally altering the rights that we have
always taken for granted. One security step that has been discussed
and debated to considerable extent, at least in the legal community,
is the government's plan to monitor certain conversations between inmates
and their attorneys.
Within a few days of the attacks, U.S. Attorney General John Ashcroft promulgated regulations that purport to provide 'authority for the monitoring of communications between an inmate and his or her attorneys or their agents, where there has been a specific determination that such actions are reasonably necessary in order to deter future acts of violence or terrorism, and upon a specific notification to the inmate and the attorneys involved.' 66 Fed. Reg. No. 211 at 55064 (Oct. 31, 2001).1 These regulations apply to inmates in the custody of the Bureau of Prisons, and to persons 'held in the custody of other officials under the authority of the Attorney General.' Id. While recognizing 'the existence of the attorney-client privilege and an inmate's right to counsel,' the attorney general asserts that 'not all communications between an inmate and an attorney would fall within the scope of that privilege.' Id.
The Oregon Code of Professional Responsibility requires Oregon lawyers to provide zealous and competent representation to every client. See DR 7-101(A)(1); DR 6-101 (A). Both state law and the disciplinary rules require a lawyer to preserve a client's confidences and secrets. ORS 9.460(3) ['maintain the confidences and secrets of the lawyer's clients consistent with the rules of professional conduct']; DR 4-101(B)(1) ['a lawyer shall not knowingly... reveal a confidence or secret of the lawyer's client.'] In light of the AG's regulations, and despite the fact that they seem to apply to only a limited population of inmates,2 lawyers have questioned whether they can zealously and competently represent an inmate client under circumstances where it may be impossible to preserve the client's confidences and secrets, or whether a lawyer must withdraw as counsel to the client under such circumstances.
The Sixth Amendment to the United States Constitution guarantees a right to the effective assistance of counsel in felony cases and in misdemeanor cases where imprisonment may be imposed as a penalty. Exactly what constitutes 'effective assistance of counsel,' both as it relates to confidential communications and otherwise, is a question of constitutional law ultimately to be decided by the federal courts. It is also subject to change to the same extent that other constitutional interpretation is shaped by societal changes.
Oregon lawyers are required to support the Constitution, ORS 9.460(1) and to provide legal counsel to persons in need; ORS 9.460(4) provides that an lawyer 'shall . . . [n]ever reject, for any personal consideration, the cause of the defenseless or the oppressed.' Simply because circumstances make it difficult to fulfill these obligations does not give grounds for withdrawal as counsel. Especially in difficult circumstances, the client still needs effective counsel, and the lawyer remains obligated to provide zealous and competent representation. The means of fulfilling these ethical obligations may change in such circumstances, but the obligations nevertheless remain.
The duty to maintain the confidences and secrets of clients appears virtually absolute. Subject to express but limited exceptions, the DRs provide that 'a lawyer shall not knowingly… [r]eveal a confidence or secret of the lawyer's client.'3 Under the exceptions, a lawyer may reveal '[c]onfidences or secrets when…required by law or court order,' DR 4-101(C)(2), and may also reveal '[t]he intention of the lawyer's client to commit a crime and the information necessary to prevent the crime.' DR 4-101(C)(3). Lawyers also have a 'duty to exercise reasonable care to prevent their employees from disclosing client secrets.' State v. Chatsworth, 151 Or.App. 100, 164, 951 P.2d 153 (1997). Lawyers are subject to discipline if they fail to fulfill these obligations. Id.
By definition, it is not possible to preserve a client's confidences and secrets in circumstances where a third person is monitoring all communications between lawyer and client. The 'firewall' procedures of the attorney general's regulations do not change this fact. Hence a lawyer representing a client covered by the regulations must advise and warn the client, before any communication takes place, that their communications are not confidential and will not be protected by the attorney-client privilege. The lawyer must reasonably satisfy herself that the client understands this advice and warning before any further conversation takes place. Giving such advice - and receiving such reasonable satisfaction - is an essential ethical obligation of the lawyer under these circumstances.
Whether a lawyer can provide effective assistance without holding a confidential conversation with the inmate client will vary from case to case. In some cases, it may be possible for the lawyer to provide effective assistance without holding a confidential conversation. In other cases, it may be essential to hold such a confidential conversation in order for the lawyer to provide zealous and competent representation. Under such circumstances, the lawyer will have an ethical obligation to seek a court order that would permit an unmonitored conversation to take place.4 In all cases, the lawyer has an ethical obligation to form a reasonable professional judgment as to whether to seek such a court order, and to continue to provide zealous and competent representation to the client even if the order is denied.
The lawyer must also be mindful of her own obligations under the DRs with regard to criminal conduct. It is 'professional misconduct' for a lawyer to '[c]ommit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness to practice law' DR 1-102(A)(2), or to '[e]ngage in conduct involving dishonesty, fraud, deceit or misrepresentation.' DR 1-102(A)(3). It is also 'professional misconduct' for a lawyer to '[v]iolate these disciplinary rules, knowingly assist or induce another to do so, or do so through the acts of another.' DR 1-102(A)(1). A lawyer is responsible for another lawyer's violation of the professional rules if '[t]he lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or [t]he lawyer has direct supervisory authority over the other lawyer and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.' DR 1-102(B)(1) and (2). Additionally, a lawyer will be 'bound by the rules of professional conduct notwithstanding that the lawyer acted at the direction of another person.' DR 1-102(C).
In the representation of a client, a lawyer shall not: '[c]onceal or knowingly fail to disclose that which the lawyer is required by law to reveal[,]'DR 7-102(A)(3); '[c]ounsel or assist the lawyer's client in conduct that the lawyer knows to be illegal or fraudulent[,]' DR 7-102(A)(7); or '[k]nowingly engage in other illegal conduct or conduct contrary to a Disciplinary Rule.' DR 7-102(A)(8). In the lawyer's representation of a client, a lawyer may '[r]efuse to aid or participate in conduct that the lawyer believes to be unlawful even though there is some support for an argument that the conduct is legal.' DR 7-101(B)(2).
Our post-September 11 world is different in ways large and small. The work of lawyers may be complicated by the legitimate interest (and obligation) of the government to institute means to ensure safety and security. Whether the attorney general's regulations remain in force is an issue yet to be decided. Ethical obligations to clients, however, remain constant.
ABOUT THE AUTHOR
Sylvia E. Stevens is assistant general counsel of the Oregon State Bar. She gratefully acknowledges the OSB Legal Ethics Committee for its analysis of this issue. Two other articles of interest are a panel discussion on civil liberties in the March 2002 issue of the Washington DC bar magazine, The Washington Lawyer, and Jeffrey Toobin's profile of Attorney General Ashcroft in the April 15, 2002 issue of New Yorker.
© 2002 Sylvia E. Stevens
1. The attorney general made these 'interim' rules effective Oct. 30, 2001, without following the usual procedures for advance notice and comment rulemaking under 5 U.S.C. §553, which he suspended under the 'foreign affairs' and 'good cause' exceptions.
2. At the time this article was written there were only 13-15 inmates in the federal prison system to whom these regulations would apply; no inmates in the BOP facility in Sheridan would be subject to monitoring.
3. The disciplinary rules define 'confidence' as 'information protected by the attorney-client privilege under applicable law,' and 'secret' as 'other information gained in a current or former professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.'
4. Whether or not the regulation impermissibly erodes the attorney-client privilege or denies effective assistance of counsel are legal and constitutional questions that will be resolved by the courts.