As legal professionals, there are few rights we hold more dearly than that of attorney-client privilege (and the privileged correspondence which comes along with it). Even incarcerated jailhouse litigators live by such an ideal, although some might call it a component of the Convict Code: keep your mouth shut and never disclose private matters. Regardless of what side of the wall you might reside on, the need for accountability and confidentiality trump many other interests. Because of this, certain rules must be followed when an incarcerated client is corresponding with legal counsel or with the courts.
Use Certified Mail for All Legal Correspondence to the Government
This is an often thought of, yet less often implemented, tool at the inmate’s disposal. Correspondence being sent to any government agency or court should always be sent via certified mail. This is regardless of whether it is a pleading, FOIA/Privacy Act request, or an administrative remedy. Always certify such legal correspondence. It costs a few dollars to do so but it provides some amount of evidence to fall back upon if there is any question concerning missing paperwork or missed submission deadlines. On more than one occasion I have utilized this sort of evidence to motivate Federal Bureau of Prisons Regional Office personnel to locate missing administrative remedies that initially they asserted they did not have and had never received.
Inmates should be advised that return receipt service and restricted delivery are not usually necessary, but certified mail always is. A pleading or administrative remedy takes time to draft and submit. An extra $3.00 in postage can be one heck of an insurance policy.
Always Send Qualified Legal Correspondence via Special Mail
While some assume that mailroom staff will always do the right thing, I do not. This is because I have had several memorable run-ins with Federal Bureau of Prisons’ staff regarding their misconduct in this regard, and have witnessed several convenient instances of paperwork never making it to the desired destination. I trust no one with the fate of my legal correspondence. Federal inmates have the right to seal their legal correspondence prior to sending it, as part of the attorney-client privilege, and they should always do so. For most inmates, all they have to do is walk legal correspondence to their Mailroom or R&D location at the applicable time and deliver the sealed legal correspondence. At other facilities, legal mail is simply placed in a special mailbox. Whatever the case, the possibility of a staff member reading the legal correspondence (if it is sent out via general correspondence) and diverting it or misplacing it in the trash may be eliminated by sealing the legal correspondence and sending it out via Special Mail.
Always Retain Copies of Legal Correspondence
Along with sending all legal correspondence via certified mail, comes the rule of always retaining copies of all legal correspondence prior to sending it. Mail sent through the United States Postal Service does occasionally get lost. It’s a fact of life. Since your time — and your client’s time — is valuable, always utilize this insurance policy against lost work product and lost productivity, and retain copies of motions, letters, and any other such materials. It sounds like a simple rule, but in the course of a busy day, copying sometimes takes a back seat. Murphy’s Law says that the one time you fail to copy the pleading, it will disappear. Make sure that it does not.
Abide by Incoming Legal Correspondence Regulations
A final correspondence rule is that attorneys should always abide by the rules and regulations of the various prison systems’ legal correspondence policies. Take the time to learn them. For example, the Federal Bureau of Prisons requires that the attorney’s name and status as an attorney be clearly indicated on the outside of the envelope and the message “Special Mail: Open Only in the Presence of the Inmate” be on the outside of the envelope (ideally stamped in red ink and on both sides of the envelope). While the BOP will consider a piece of mail as legal mail if there is an attorney’s name and title on the envelope, they will not consider the name of a law firm (where no name or title are indicated) as qualifying as legal mail. As for the Special Mail disclosure, policy indicates that it should be present, but it isn’t necessarily a requirement. But including the disclosure will ensure to that mistakes are not made. Such mistakes can be problematic; staff invariably read wrongly marked legal correspondence. As such, it is a smart idea to utilize a stamp covering all the requirements.
Inmates and attorneys get into correspondence trouble when they don’t dot their i’s or cross their t’s. By taking the extra minute or two to copy legal correspondence, sending it out via legal/special mail (as opposed to general correspondence), spending the extra stamps on certification, and abiding by all prison legal correspondence regulations, much stress and the instance of error can be reduced. This I deem to be an important investment in a quality relationship with a client and in a quality work product.