11 July 2010

So you thought attorney client phone calls from the jail were privileged . . .

From Florida:
McWatters also argues that the trial court erred in denying his motion to disqualify the [prosecutor] for the Nineteenth Judicial Circuit. He contends that the [prosecutor] should have been disqualified because the [prosecutor] listened to phone calls McWatters made to his lawyers while he was an inmate at the Martin County Jail. This Court has stated that "disqualification is proper only if specific prejudice can be demonstrated. Actual prejudice is `something more than the mere appearance of impropriety.' Disqualification of a [prosecutor] is appropriate `only to prevent the accused from suffering prejudice that he otherwise would not bear.'" Farina v. State, 680 So. 2d 392, 395-96 (Fla. 1996) (citations omitted) (quoting Meggs v. McClure, 538 So. 2d 518, 519-20 (Fla. 1st DCA 1989)). A ruling on a motion to disqualify is reviewed for abuse of discretion. Id. at 395.

At a hearing on McWatters' motion, evidence was presented that the jail systematically recorded all calls made by inmates. A recording was played before each conversation that advised the inmate: "This call is subject to monitoring and recording." After listening to the recorded calls to counsel in camera, the trial court denied the motion. The trial court found that McWatters' statements were limited in a "fashion that strongly indicates his knowledge that he is being monitored or recorded" and that other calls demonstrated that he "clearly knows that he is subject to being recorded." The trial court concluded that "[t]here was no reasonable expectation of privacy in those calls and there was a voluntary waiver of privilege by Mr. McWatters in the face of that lack of reasonable expectation of privacy." The trial court added that there was no evidence "that the substance of these calls provided any benefit to the prosecution" or was used to "any detriment to Mr. McWatters." We agree.

Section 90.502, Florida Statutes (2006), establishes a statutory privilege for communications between a client and his or her lawyer. The attorney-client privilege "attaches only to confidential communications not intended to be disclosed to third persons who are not furthering the rendition of legal services." Mobley v. State, 409 So. 2d 1031, 1038 (Fla. 1982). "Whether a communication is confidential depends on whether the person invoking the privilege knew or should have known that the privileged conversation was being overheard." Id. Before every call, McWatters was warned that his calls were subject to monitoring and recording. This Court has held that an inmate has no reasonable expectation of privacy in a telephone communication from jail where the inmate is warned that all calls are monitored or recorded. See Jackson v. State, 18 So. 3d 1016 (Fla. 2009), cert. denied, 78 U.S.L.W. 3417 (U.S. Jan. 19, 2010). There was no reason for McWatters to believe that his phone calls to defense counsel would be excluded from this warning. Thus, McWatters waived his right to confidentiality. Based on the foregoing, we find that the trial court did not abuse its discretion in denying McWatters' motion to disqualify the [prosecutor].

McWatters v. State

Technically, I think this is a correct decision and could be applied across most States. After all, there is a warning. Still, in an era of regional jails and far off prisons which are difficult for defense attorneys to actually reach it is a disturbing opinion. Sometimes the phone is the only way to contact a defendant.

Heck, I can't even find an ethical breach in a prosecutor listening to the recorded phone message. When I look through Virginia Ethics Rules the prosecutor ethics rule doesn't speak to this, nor does the communications with represented parties rule (not communicating with defendant, just listening after disclosing that it will be done). The only ethics rule I can find that would apply is this one:
1.3(c) A lawyer shall not intentionally prejudice or damage a client during the course of the professional relationship, except as required or permitted under Rule 1.6 and Rule 3.3.
So, I guess defense attorneys are going to need to make sure their cars are in good working order so they can get to the jails/prisons and stop taking calls from inmates - because, no matter how many times you warn them, I guarantee they'll say things a prosecutor would love to hear.

1 comment:

Pamela J. Lakatos said...

I make it a policy to never take jail phone calls because you just can't make the client understand that there is no privilege there.
That being said, the other day I got a call on my cell phone which was preceeded by a recording informing me that if this was a call to an attorney then I should hang up and call a given number. They will then block recording any call made to that number by that inmate. This is in Dallas, Texas.
First time I have heard that. Now, if I could just get over my paranoid reluctance to believe I can trust them!