Lawyers Journal

MBA criticizes DOJ move to monitor attorney-client communications

The Massachusetts Bar Association recently submitted comments to the U.S. Department of Justice criticizing changes allowing the Bureau of Prisons to monitor communication between attorneys and inmates or detainees with suspected terrorist ties.Click here to view comments or click below for more of this story.

The DOJ submitted changes to its rules on Oct. 31 to aid law enforcement investigations of terrorist activities following the Sept. 11 attacks. The changes were made effective on Oct. 30, with written comments due by Dec. 31.
"The immediate implementation of this interim rule without public comment is necessary to ensure that the department is able to respond to current intelligence and law enforcement concerns relating to threats to the national security, or risks of terrorism, or violent crimes that may arise through the ability of particular inmates to communicate with other persons," said a Department of Justice statement.
At a special meeting on Nov. 26, the House of Delegates voted on the comments prepared by the MBA Presidential Task Force on the Preservation of Rights, Liberties and Access to Justice. The task force will review all legislation, executive orders and administrative regulations issued or passed in connection with the Sept. 11 tragedy to determine whether rights, liberties or access to justice are impacted.
The DOJ change relates to mail, visits and telephone calls between attorneys and their clients, and implements the use of privilege and taint teams to monitor all such communications.
"Apparently, the department is not concerned about any chilling of constitutional rights," the task force wrote.
House of Delegates members criticized the changes saying the ability of a client to communicate confidentially with his attorney is indispensable to that individual's right to counsel. The MBA believes the DOJ acted illegally in including such a change in these regulations and compounded its error by implementing these changes on an emergency basis.
"It is inappropriate to implement extensive and fundamental changes to existing regulations on an emergency basis, especially when they impact constitutional rights," the task force comments state. "Neither the DOJ, nor any other federal agency, has authority to take away fundamental rights. These regulations curtail, and in most instances eliminate, an inmate's or detainees' Sixth Amendment right to counsel."
MBA task force called the DOJ's proposed regulation abhorrent, saying it must be repealed immediately.
"It is totally inappropriate for an administrative regulation to obliterate the right of an inmate or a detainee to have an attorney. Because the privilege team is given the right to monitor all communications between an inmate and his attorney, the inmate's fundamental right to have an attorney has been taken away," the task force wrote. "Once notified by the DOJ that conversations will be monitored, no attorney can talk to his client. Consequently, the regulations do not merely limit the attorney-client privilege, but rather they deny an accused of his right to counsel.
"While the DOJ recognizes the existence of the attorney-client privilege and an inmate's right to counsel, it imposed these regulations to ferret out communications it alleges do not fall within the scope of the privilege. The regulations fail to recognize, however, the ethical obligations imposed upon an attorney not to engage in criminal conduct or criminal conspiracy. Given the obligations already in place, the concerns of the DOJ in promulgating this regulation are unfounded."
The MBA comments are available online at

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