Prisoners confined within the Federal Bureau of Prisons do enjoy the right to privileged legal communications with their attorneys. This means that they can use unmonitored legal telephone calls, postal correspondence and visits when the communication is with a licensed attorney. This enables prisoners to communicate confidentially with counsel to obtain legal advice and assistance.
By far, legal mail is the most commonly used form of attorney-client communication. Inbound legal mail can be sent to the prisoner’s regular address, but must contain certain elements on the outside of the envelope to ensure that it will be treated as privileged. If these three elements aren’t present, prison Mail Room staff will open the communication and review its contents. This includes:
- The attorney’s full name
- Their title as an attorney
- A notice that states something along the lines of “Special Mail/Legal Mail: Open Only in the Presence of the Inmate”
Once such qualified legal mail is received, it will be routed to the prisoner’s unit team, who will call the addressee back to the unit team area and open the envelope in front of them. Prison staff will then glance through the contents to ensure contraband isn’t present, but they are not permitted to read the privileged legal communication.
Federal prisoners are also permitted to send attorneys legal mail. This is done at the 7:40 a.m. work call move each weekday morning. All the prisoner has to do is put the letter together, place it in an envelope, stick a TRULINCS mailing label to the envelope, write on the envelope “Legal Mail,” and deliver the sealed letter to Mail Room staff. The letter will then be placed in an outgoing mail bag and the contents will not be reviewed.
While mail from attorneys is privileged, mail from their paralegal or from an investigator is not deemed legal mail by the Federal Bureau of Prisons. But, as long as the envelope carries your attorney’s name, title as an attorney, and the Special Mail/Legal Mail notice, it should still be treated as legal mail.
If the envelope states that it is from the “Law Offices of __________”, this still does not qualify as legal mail. The Federal Bureau of Prisons is very, very bad about privileged legal mail. If any of the previously mentioned three elements are missing, they will open the legal mail and read it. The reason for the above not qualifying is because, as the Bureau asserts, the mail could be from someone who is not an attorney.
If prison staff opens your legal mail or listens in on your legal telephone calls and visits, you should file an administrative remedy each and every time. If this reaches a level where you need to go to court, you’ll first need to have exhausted your administrative remedies prior to filing suit.
If you’re in the Special Housing Unit and can’t go to the legal mail call at 7:40 a.m., you should be able to simply place your sealed legal mail under your door and have it picked up with your regular mail. At some prisons administrators require you to hand-deliver it to a member of your unit team for them to deposit at the Mail Room.
While prisoners can phone their attorneys using inmate telephones or email them through the TRULINCS email system, the Federal Bureau of Prisons doesn’t consider these to be privileged communications. Such communications have the capability of being read and listened to by prison officials.
Also, legal telephone calls are not a right for prisoners, so requests from prisoners to phone their lawyers can be denied. When denying such telephone calls the Bureau usually cites the instance of visits and postal correspondence as viable alternatives. If you have a good case manager or counselor who is open to such legal telephone calls, try to be mindful and not oppressive in the frequency or length of such calls.
For the above reasons, attorneys usually initiates legal phone calls. Best practice is for the attorney to call the prisoner’s counselor, case manager, or unit manager and ask to schedule a legal call.
Ideally the person on the other end of the line will then provide a date and time to call. Once the appointed time comes, the prisoner will be permitted to use an unmonitored staff telephone. Staff are permitted to visually supervise the inmate, but they cannot subject the call to auditory supervision. At some federal prisons unit team staff try to limit such legal calls.
Last, legal visits. In order to schedule a legal visit the attorney should follow the same protocol as for legal telephone calls. After they schedule a date and time, the attorney will be escorted to the visitation room, where the prisoner will also be escorted. Staff are not permitted to listen in on the legal consultation, but they can visually supervise it. They can also search both the prisoner and attorney to ensure that contraband hasn’t been passed between attorney and incarcerated client, though they generally can’t read any documents in the possession of either party. For the most part this search is restricted only to the prisoner, though it is also common for an attorney to be required to walk through a metal detector and to have their briefcase x-rayed.
There are no limits to the number of legal visits or amount of legal correspondence between you and your attorney. Send as many letters to your attorney as you would like. In terms of visits, they must be conducted during normal business hours. Generally speaking, the attorney needs to provide 24 hours advanced notice of a legal visit, but that is all.
Contact us for more information on prisoner and attorney communications, or other aspects of prison life.