Pre-Litigation Attorney Solicitation Letters are Protected Legal Mail
The Sixth Circuit Court of Appeals upheld a preliminary injunction that requires officials at Michigan’s Livingston County Jail (LCJ) to deliver correspondence to prisoners marked “legal mail” from the ACLU.
That ruling came in a lawsuit the ACLU initiated after LCJ’s Administrator Tom Cremonte testified in PLN’s lawsuit challenging LCJ’s postcard only rule. See: Prison Legal News v. Livingston County Sheriff Bob Bezotte, U.S.D.C. (E.D. Mich.), Case No. 11-cv-13460.
Cremonte interprets “mass mailings” as “a solicitation as opposed to a bona fide legal matter.” He further explained that [i]f it’s an attorney from out of the county, if it’s an attorney where you get four, five pieces of mail, “legal mail”, and there are four or five inmates getting them, those I would say are not legal mail” under LCJ policies.
The ACLU was granted leave to file an amicus curiae brief in PLN’s suit. It then sent letters to 25 LCJ prisoners, clearly marking them “legal mail”, with the attorney’s name and bar number. Cremonte decided the letters were a mass mailing.
With that determination, he did not deliver the letters to the prisoners, nor did he inform them or the ACLU that they were rejected. One of the letters was addressed to a prisoner who was no longer at LCJ, but not even that letter was returned to the ACLU. Rather than return the letter, LCJ opened it, read its contents, sent a copy to its attorneys, and published it on PACER in the PLN case.
Based upon that information, the ACLU filed its own suit and sought a temporary restraining order (TRO). The district court granted the TRO and after a hearing granted the ACLU a preliminary injunction enjoining LCJ “from not delivering any legal mail from the ACLU to any inmate… if the inmate is no longer in custody, Defendants must return the mail to Plaintiff forthwith indicating same.”
LC J appealed and its motion to stay the preliminary injunction were denied. On appeal , The Sixth Circuit rejected LCJ’s “overly restrictive interpretation of legal mail as contrary to our precedent and an unnecessary impingement on important First Amendment rights.”
Mail from the American Bar Association or a county clerk is not legal mail because it “is not from someone who can provide legal advice about a prisoner’s rights or direct legal services and is not someone with authority to take action on behalf of a prisoner.” On the other hand, mail from an attorney is legal mail as a matter of law because “unimpaired confidential communication with an attorney is an integral component of the judicial process.”
“Attorneys from “legal assistance organizations” like the ACLU (or any other attorney for that matter) must be able to send confidential communication prior to initiating legal action or formally creating an attorney-client relationship,” the Sixth Circuit wrote. The fact LCJ officials read the letter and forwarded it to its attorney “is precisely why confidential pre-litigation correspondence must be protected.”
The district court’s order was affirmed. See: ACLU v. Livingston County,F.3d (6th Cir. 2015) Case 14-1617.
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Related legal cases
ACLU v. Livingston County
| Year | 2015 |
|---|---|
| Cite | F.3d (6th Cir. 2015) Case 14-1617 |
| Level | District Court |
| Injunction Status | N/A |
| Appeals Court Edition | F.3d |
Prison Legal News v. Livingston County Sheriff Bob Bezotte
| Year | 2011 |
|---|---|
| Cite | U.S.D.C. (E.D. Mich.), Case No. 11-cv-13460 |
| Level | District Court |
| Conclusion | Bench Verdict |
| Injunction Status | N/A |