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Attorney Client Telephone Calls Public Interest Law Group 2008.pdf

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705 Second Avenue, Suite 501
Seattle, VVashbngton 98104
(206) 447-0103
(206) 447-0115 (fax)





Hank L. Balson
VVendy VV. Chen
Nancy S. Chupp
Gwynne L. Skinner, Of C0U11sel

May 14,2008

Eldon Vail
Washington Department of Corrections
P.O. Box 41100
Olyillpia, WA 98504-1100

Re: attorney-client telephone calls
Dear Secretary Vail:
Congratulations on your appointment earlier this year. As attorneys and
organizations who represent Washington prisoners on a regular basis, we look
forward to working with you and your staff to address issues of concern in
cooperative and productive ways.
We are writing today to express concern regarding lawyers' frequent inability to
have confidential telephone COllllllunications with their clients at DOC institutions.
Our understanding, based on conversations with nUlllerous clients and colleagues,
as well as personal observations, is that it is difficult or illlpossible for prisoners to
make confidential legal calls because the phones they are required to use are
located in areas, such as day rooms and exercise yards, that are not private. On
several occasions, clients have been reluctant or unwilling to speak with their
lawyers about a sensitive topic because they were worried about being overheard
by staff or other inmates. This risk interferes with lawyers' ability to
communicate with their clients.
Our second concern pertains to inmates' inability to have confidential legal calls
with attorneys whose telephone systems are incompatible with DOC's collect call
system. For instance, if an attorney does not have a live person answering his or
her phone, but instead relies on an auto-attendant/voicemail systelll, DOC's
telephone technology will not allow the inmate to make a collect call to that
attorney. Counselors are sometillles willing to facilitate a call in that situation,

allowing the inmate to use the counselor's office, but as you can ilnagine, that is
an inconsistent, unreliable alternative - one that is disruptive to the counselor's
nonnal work. Further, DOC's systeln does not allow inmates to contact firms that
have established 1-800 numbers to receive client calls.
The right of prisoners to have confidential communications with their lawyers is
well established. In 1974 the U.S. Suprelne Court held that "inmates lnust have a
reasonable opportunity to seek and receive the assistance of attorneys.
Regulations and practices that unjustifiably obstruct the availability of
professional representation or other aspects of the right of access to the courts are
invalid." Procunier v. Martinez, 416 U.S. 396,419 (1974). Reasonable telephone
access is an important component of an inmate's right of access to court and
counsel. See Divers v. Dep't of Corrections, 921 F.2d 191, 194 (8th Cir. 1990)
(holding that district court erred in dislnissing inmate's challenge to prison
regulation that prevented inmates from phoning attorneys unless they could prove
they had a court date set within the next 30 days); Johnson-EI v. Schoemehl, 878
F.2d 1043, 1052 (3rd Cir. 1989) (allowing prisoners only one attorney call every
two weeks, and counting calls as made when the attorney was not reached, is
"patently inadequate"). Further, "[d]etainees' right to counsel and due process can
also be compromised by a lack of privacy in consultations with counsel. Forcing
prisoners to conduct their meetings with their attorneys in the open or to yell over
the phone obviously compromises the consultation." Id. See also, Ching v.
Lewis, 895 F.2d 608, 609 (9th Cir. 1990) ("The opportunity to communicate
privately with an attorney is an important part of [an inmate's] meaningful access
[to his attorney and the courts].") (emphasis added).
When prison officials deprive inlnates of the means to communicate confidentially
with their lawyers, they interfere not only with prisoners' constitutional right of
access to the courts, but also with their First and Fourteenth Amendment rights
pertaining to free speech and privacy. Willialns v. Price, 25 F. Supp. 2d 623
(W.D. Pa. 1998) (granting summary judgment to inmates on First and Fourteenth
Amendment claims challenging non-confidential attorney-client visit booths).
Unreasonable restrictions on confidential attorney-client communications also
impinge upon the attorney's First Amendment rights. See StUrIn v. Clark, 835
F.2d 1009 (3rd Cir. 1987).
Based on clients' complaints and the personal observations of some of the
attorneys signing this letter, it appears that DOC does not provide constitutionally
adequate lneans for lawyers to have confidential calls with their incarcerated


We are very interested in resolving this issue cooperatively, without litigation. To
that end, we would welcome an opportunity to sit down with you (or someone you
designate) to discuss ways to fix the problem. We also would like to discuss ways
to allow inmates to have confidential legal calls with attorneys whose phones are
not cOlllpatible with DOC's system.
Thank you in advance for your anticipated cooperation. We look forward to your
response, which may be directed to Hank Balson at Public Interest Law Group,


Hank Balson
Public Interest Law Group, PLLC

David Donnan, Director
Washington Appellate Proj ect

Breean Beggs, Executive Director
Center for Justice

Sarah Dunne, Legal Director
Alllerican Civil Liberties Union of
Washington Foundation

Eric Broman
Nielsen, Broman & Koch, PLLC

Christie Hedman, Executive Director
Washington Defender Association

Ed Budge
Budge & Heipt PLLC

Thomas Hillier, II
Federal Public Defender
Western District of Washington

Beth Colgan, Managing Attorney
Institutions Project
Columbia Legal Services

Teresa Mathis, Executive Director
Washington Association of Crilllinal
Defense Lawyers

Anne Daly, Director
Society of Counsel Representing
Accused Persons

Floris Mikkelsen, Director
The Defender Association

Fred Dialllondstone
Law Offices of Fred Diamondstone

Regan Bailey, Legal Director
Disability Rights Washington

Dan Judge, Assistant Attorney General