Federal law enforcement officials could soon be prohibited from reading emails sent between clients in custody and their lawyers under legislation passed by the U.S. House of Representatives, as defense attorneys warn the issue has become more urgent now that the pandemic makes in-person visits almost impossible (article available here). The House passed H.R. 5546, Effective Assistance of Counsel in the Digital Era Act, which ensures that attorney-client confidentiality is preserved in the federal prison system no matter the form of communication.
The bill is a logical update to how the Bureau of Prisons handles privileged communications between incarcerated clients and their lawyers. Currently, the BOP does not monitor contacts between attorneys and their incarcerated clients when the communication takes place through letter, phone call, or personal visit. When it comes to e-mail, however, there is no such protection. The bill would prohibit the Bureau of Prisons from monitoring emails between clients and their attorneys except in certain limited cases.
The Supreme Court explained in Upjohn Co. v. United States that the reason for this confidentiality is “to encourage full and frank communication between attorneys and their clients, and thereby promote broader public interests in the observance of law and administration of justice.” Without this ability, it would be difficult for attorneys to effectively counsel to his or her client.