June 2002

Monitoring Attorney-Client Conversations: A Morality Play in Two Acts

by Allen Bentley

Background: "Our world will never be the same," they said after the September 11 attacks. But what were they talking about? An end to America's insularity and self-absorption? An end to America's mobility and the mutual trust that made mobility possible? Or an end to the legal rights and protections on which Americans have long relied to protect us from government overreaching?

Editor's note: One of the many post-September 11 changes in legal rights and protections involved the attorney-client privilege and the confidentiality of conversations between lawyers and their clients in federal custody. On October 31, 2001, Attorney General John Ashcroft published changes to 28 C.F.R. §501.3, changes designed to permit the "monitoring of conversations with attorneys to deter acts of terrorism." The attorney general justified the changes by stating: "In those cases where the government has substantial reason to believe that an inmate may use communications with their attorneys to further or facilitate acts of violence or terrorism, the government has a responsibility to take reasonable and lawful precautions to safeguard the public from those acts." In this fictional drama, the author, a defense attorney and former federal prosecutor, muses about this change in our legal world.

Time: January 2002

Setting: The curtain rises and we see the copy room in a busy federal prosecutor's office somewhere on the East Coast. It is night. City lights are seen through the windows. The copy room is empty except for PROSPERO, an assistant U.S. attorney, who is struggling to clear a paper jam.

Enter CANDIDE.

CANDIDE: Prospero, what are you doing here at this late hour?

PROSPERO: Well, I've been trying to make a copy of this new regulation our boss has put out, permitting us to eavesdrop on conversations between defense lawyers and their clients. But the machine has jammed again.

CANDIDE: Have you tried turning the machine off and on?

PROSPERO [still probing the machine]: Candide, I'm concerned by what I read in the press about this regulation. It seems like a big invasion of the attorney-client relationship, to eavesdrop on other lawyers….

CANDIDE [reaching in and extracting a piece of crumpled paper from the machine]: "Monitor," my friend, not "eavesdrop."

PROSPERO: There's a difference?

PROSPERO [didactically]: Yes. "Eavesdropping" is when one secretly listens to a private conversation in order to obtain an advantage over the persons engaged in the conversation. "Monitoring," on the other hand, is openly listening to a conversation in order to make sure that the parties to the conversation don't break any legal rules.

PROSPERO: Oh.

CANDIDE: The Ashcroft regulation authorizes monitoring, not eavesdropping. And another important point, you know, it doesn't apply in every case. It will be used only where we feel that a federal inmate may pose a threat of terrorism or violence. In those cases, we'll notify the inmate and his attorney, in advance, that we may be monitoring. By the way, Prospero, that wily fiscal conservative Ashcroft has hit on a clever way to save the government money. We don't have to monitor everyone whom we notify. Just the notification of possible monitoring will deter lots of terrorist and violence-related conversations.

[Sounds of a copy machine, now working properly, in the background.]

PROSPERO: I feel better already. But, Candide, don't all of us in the justice system recognize something called the attorney-client privilege?

CANDIDE: Let me correct you a little bit on that, my friend, and then I'll give you the answer to your question. The Constitution guarantees that in all criminal cases the accused shall have "the Assistance of Counsel for his defence." It doesn't spell out the contours of that right in any detail. So, the attorney-client privilege is not of constitutional stature. It's nothing more than a rule of practice, adopted by a hodgepodge of bar associations, which are essentially nothing more than state regulatory agencies. Gee, I thought we'd put those bar associations in their place a long time ago with the Thornburgh memo. Remember, that was the memo from the attorney general that allowed you and me, as federal prosecutors, to contact witnesses without going through their attorneys, no matter what the bar associations might say.

PROSPERO: You're right. I've put the Thornburgh memo out of my mind, since Congress overturned it through legislation. Yet hasn't the Supreme Court held, since at least the 1930s, that "assistance of counsel" means effective assistance of counsel, and doesn't "effective" assistance include allowing the client to communicate confidentially with the attorney?

CANDIDE: Touché. But even if I concede that the attorney-client privilege is an essential part of the right to counsel, the Ashcroft regulation simply doesn't threaten the privilege.

PROSPERO [incredulous]: It doesn't?

CANDIDE: No way. You know, we prosecutors can already get access to certain attorney-client communications, after the fact. Remember that case I handled a few years ago when I was a state court prosecutor? The client went to an attorney and threatened to kill a judge. The lawyer reported it to the authorities. The courts held that the statement wasn't privileged, though it certainly was an attorney-client communication. Or what about those letters that we were able to subpoena from the Abbott & Bashford law firm last month? They were attorney-client communications, but the court denied the firm's motion to quash and ruled that we could get them under the "crime-fraud" exception to the privilege.

PROSPERO: I remember that, of course. We were giving each other high-fives afterward. And the cases do hold that communications between a client and his lawyer aren't protected if, say, we can show that the client and lawyer are abusing the privilege by planning new crimes. I guess you could say that there isn't much difference between the Ashcroft regulation and existing law on the "crime-fraud" exception. Hey, if defense lawyers are doing their jobs, just representing their clients and not furthering a terrorist conspiracy or plotting crimes of violence, what right do they have to complain? If we can legitimately get access to defense attorney-client communications under the "crime-fraud" exception, after the fact, why can't we monitor them for such nonprivileged content as they occur? There won't be any prejudice to the defense — our monitors will never disclose those portions of the conversation that are truly confidential.

CANDIDE: You're a quick learner, my friend.

[Candide removes the photocopied pages from the copier and hands them to Prospero. They leave the copy room. The curtain falls.]

Time: January 2003

Setting: An urban coffee shop. Prospero and Candide are sitting next to the window. As the curtain rises, a waiter has just served hamburgers and coffee to the two prosecutors.

CANDIDE: Thank you for the lunch invitation, Prospero.

PROSPERO: I wanted to congratulate you on your new job. It's good to see you taking on new responsibilities as the chief of the office's Domestic Security Enforcement Unit.

CANDIDE [biting into his burger]: It's true, both of us have such interesting assignments. You're doing great work, I hear, pursuing that ring of armed bank robbers.

PROSPERO: It's routine now. [pauses] You know, I think the way you were able to clearly articulate the logical basis for the Ashcroft regulation, defending it against those misguided attacks from the legal community, helped you a lot in getting promoted to chief. And now, as the lead prosecutor on the Al-Gazira case, you're getting even more good ink.

CANDIDE: I can't believe how things worked out for me. To be the head of the Domestic Security Enforcement Unit and have the opportunity to prosecute the man who owned the travel agency where Mohammed Atta bought his tickets for the flight on September 11 — well, it's quite a ride.

PROSPERO: You're also getting first-hand experience with the workings of the Ashcroft regulation on monitoring the defendant's conversations with his attorney. That's a great experience — cutting-edge stuff, I would think.

CANDIDE: No, actually it's not that uncommon anymore. Do you realize that monitoring notifications were sent out in 43 different cases, nationwide, in the year since the regulation was issued?

PROSPERO: I didn't know that. Gee, when Ashcroft came out with the regulation, I thought it would be used sparingly. You know, "Break glass and use in case of Osama Bin Laden," or something like that.

CANDIDE: Well, our colleagues seem to be using it all the time. Not for bank robbers — the violent types you deal with don't get monitored, though I suppose we could do that, too, under the regs — but for cases involving even the slightest possible terrorist connection.

PROSPERO: No kidding. [pauses] And how is your case going? Foresee any problems convicting the infamous Mr. Al-Gazira?

CANDIDE: It's not open-and-shut, that's for sure.

PROSPERO: What did this guy do? I mean, what's your evidence?

CANDIDE: Al-Gazira played a key role in the murder of more than 3,000 Americans. A key role. He sold the tickets. Think of it. Without those tickets, Mohammed Atta would not have been able to board that flight. And Al-Gazira's an Egyptian. We have confidential information that he was in the conspiracy up to his neck. In fact, he was supposed to sell tickets to the other hijackers, according to our sources, but he misunderstood a coded message and refused to sell to them.

PROSPERO: Will this come out at trial?

CANDIDE: Dubious. The Bureau doesn't want to blow their source. Frankly, I'm worrying about an acquittal. You know, the media has built me up as "the prosecutor who never lost a case."

PROSPERO: Yes, you've got quite a reputation.

CANDIDE: Then we had the fracas over the monitoring notification that I issued to Al-Gazira. I guess that helped feed into my public image as a tough prosecutor. You know what, Prospero? I had to issue the monitoring notification. I didn't want to.

PROSPERO: Really. Why do you say you "had to"?

CANDIDE: Pressure from the Bureau. They kept telling me that their source told them that Al-Gazira's lawyer was in contact with other Arabs, and she might be used as a channel for funneling information in and out of the jail.

PROSPERO: I hear that after you issued the notification of monitoring, you had quite a battle in court.

CANDIDE: Yes. Al-Gazira's lawyer raised hell and sought an order from Judge Middleman stopping the monitoring. She kept claiming that her client was just a hard-working immigrant who didn't even keep Ramadan. For all I know, maybe he is. But the hijackers themselves were said to go to bars and drink alcohol. I argued that everything changed on September 11. The judge agreed. He even quoted my argument in his opinion. [musing] "Everything changed on September 11."

[Pause. CANDIDE eats French fries.]

CANDIDE: Then the other shoe drops.

PROSPERO: You mean, the lawyer's withdrawal?

CANDIDE: Yes. Al-Gazira's first lawyer would have been a tough but diligent adversary. I doubt that she had anything to do with terrorism, despite what the Bureau said. The fact that she withdrew is probably good proof of that. She said she couldn't ethically represent her client if their conversations were being monitored.

PROSPERO: Yeah, I see your point. I probably would have done the same thing in her place.

CANDIDE: Then the court appointed a new lawyer for Al-Gazira. But now this second lawyer's got client problems. I told him maybe we could work a deal if Al-Gazira could provide information about the other travel agents who were involved in September 11. Al-Gazira isn't forthcoming. The lawyer tells me that Al-Gazira thinks he's wired and that the lawyer's turning the tape over to me after each of their meetings! Can you believe it?

PROSPERO: I bet that breach of confidentiality I read about last month in the monitoring of the Iraqi defendant in that case down south didn't help.

CANDIDE [scowling]: Please. Don't remind me. You know, I still do believe it was an accident, not an intentional intrusion into the attorney-client relationship as it was portrayed in the press. The assistant in charge of the monitoring — fired. The defense arguments: "We've become a totalitarian state. None of our rights are safe." The media circus. We all looked bad. Thank God the judge there kept a level head and wasn't swayed by the defense argument that the indictment should be dismissed. And for what? What in the world did we gain by listening to the defendant talking with his lawyer…

PROSPERO: It sure beats me.

CANDIDE: …when all we learned was that the lawyer was being fed a bunch of lies!

PROSPERO: I know. What a waste.

CANDIDE [musing again]: I need to get a dialogue going with this Al-Gazira. You know, Jerry Diskin and his colleagues in Seattle had such success in getting that terrorist — I forget his name — to cooperate back in 2001. How'd he do it?

PROSPERO: From what I hear, they had a very effective defense team. This guy named Hillier and his people really fought for their client. It looks to me like they lost the trial, but they won his trust. And trust is what it's all about, wouldn't you agree?

CANDIDE: No, I wouldn't generalize to that extent. Every case is different. You and I, we really don't have any idea of what went on in that other case. As I recall, the guy in Seattle was Algerian. Al-Gazira's Egyptian. Maybe there are cultural differences. Whatever. I do wish I could get some dialogue going with this jerk. If not, I may have to try the case. And I could lose. Prospero, all I can show the jury is that he's a travel agent, he sold a ticket, and he's Egyptian!

PROSPERO: You're worried. I've never seen you this nervous before.

CANDIDE: You would be, too. My record's at stake. And you know, Prospero, this case is different from the others I've handled. I've always been able to reassign my dogs to somebody else, or if pressed, dismiss them. I can't do that here — there's the media. And I can't give this guy too lenient a deal now that I'm blaming him for 3,000 deaths.

[Waiter arrives and leaves the check. Prospero picks up the check and studies it.]

PROSPERO: Wow.

CANDIDE: Expensive?

PROSPERO: No, I was thinking more about the monitoring process. It's crazy, in a way. [pauses] By the way, which of our esteemed colleagues is doing the monitoring in your case?

CANDIDE: Would you believe? I don't happen to know.

PROSPERO: Would you happen to know if he or she is taping everything?

CANDIDE: I think so. I think it's required by the revised regulation that came out last month.

PROSPERO: Are you in a position to find out who's doing the monitoring?

CANDIDE: If I wanted to, yes, I could. I've already got a good idea. The department's trying to keep me in the dark — it's part of their new, stricter standard for monitoring, but you don't have to be a rocket scientist to pick up the clues.

PROSPERO: Do you think anything worthwhile might have turned up in the monitoring?

CANDIDE: [shocked]: Prospero. Prospero, I've always looked up to you as the conscience of the office!

PROSPERO: Just a thought.

CANDIDE: As I told you before, this defendant is lying to his attorney, nothing more. Lying. I mean, probably lying. If you think I'd risk my job, my career to find out exactly what he's saying…

PROSPERO: I know you wouldn't. Nobody in our office would. Didn't we come to our work with idealism? Haven't we always said, "We're not here just to get convictions, but to do justice." Imagine it: intruding into the attorney-client relationship, just in the hope of winning a trial…I can't believe that would ever happen!

CANDIDE: No, it wouldn't happen. It won't happen. Not on my watch. Not here. Not now.

PROSPERO [shrugging]: I feel much better now.

[Prospero leaves money on the table to pay for lunch. The two rise and walk out of the coffee shop.]

[The curtain falls.]