We Need to Talk: Modernizing Attorney-Client Jail Communications

Authors

Cynthia Alkon, Texas A&M University School of LawFollow

Document Type

Article

Publication Date

2-2025

Journal Title

University of Richmond Law Review

ISSN

0566-2389

Abstract

Attorney-client jail phone calls, video calls, and emails are all routinely recorded and monitored by jails, with numerous examples of jails and private telecommunications providers giving those recordings and emails to law enforcement and prosecutors. This widespread failure to protect the confidentiality of attorney-client communications prevents lawyers from being able to enjoy easy, quick, and regular communications with their clients. In practice, and despite the ever-expanding communication methods in the outside world, those held in jails in this country while their criminal cases are pending are effectively stuck in the nineteenth century when the only way to communicate was in person or through a written letter. The pandemic brought new urgency to this problem as jails closed and in-person visits stopped. This left lawyers with snail mail as the only option to communicate confidentially with their clients. This Article, in part, reports the results of a nationwide survey in which defense lawyers reported on the serious problems they had communicating with their jailed clients due to the failure of jails nationwide to guarantee confidentiality in electronic forms of communication, including phone calls. This Article challenges current practices. As the pandemic highlighted, this is no longer a small problem to be looked at through the lens of individual lawsuits, cases, and motions. The failure to protect attorney-client confidential communications is a systemic problem demanding systemic solutions. Moreover, the problem remains serious and steadfast even as the pandemic continues to recede and fade away; the pandemic acted as a spotlight, helping to focus on this issue and recognize its severity. Lawyers and clients have a strong interest—as well as a legal right—to engage in completely confidential communications. This Article brings to light a key interest that the courts have in protecting this right: it ensures the efficient running of a criminal legal system that relies almost exclusively on plea bargaining—a process that breaks down if defendants and their lawyers are not assured confidential communications. This Article concludes that the most direct path to meaningful change rests in criminal courts—the judges, the administrators, and the clerks each recognizing that their failure to take meaningful action with telecommunication service providers— to protect the confidentiality of electronic attorney-client communication impacts not just their legitimacy, but also the efficiency of court operations.

First Page

199

Last Page

251

Num Pages

53

Volume Number

59

Publisher

University of Richmond School of Law

Recommended Citation

Cynthia Alkon, We Need to Talk: Modernizing Attorney-Client Jail Communications, 59 U. Rich. L. Rev. 199 (2025).
Available at: https://scholarship.law.tamu.edu/facscholar/2206

File Type

PDF