By Noreen Marcus,FloridaBulldog.org
Florida prison officials want to change a rule to keep lawyers from talking to inmates who may need their help; the new rule would place inmates who could be defense witnesses completely out of earshot.
In response, criminal defense attorneys and prisoner advocates are protesting to anyone who will listen.
They’re calling on the Florida Department of Corrections (DOC) to reject proposed internal revisions to the existing lawyer-inmate phone rule because, they say, the planned new rule would trash the right to counsel.
The proposal was published in December, a month after Gov. Ron DeSantis changed the leadership of the troubled agency, installing DOC veteran Ricky Dixon as the new secretary.
In recent years the nation’s third-largest prison system has been wracked by staffing shortages and expensive litigation over inadequate medical care and other substandard conditions.
If the department adopts the revisions later this year, the new phone rule could crumble under a court challenge the lawyers say they probably will mount.
“This is directly offensive and violative of the right to counsel and that’s one that courts are protective of, even in this day when courts have watered down many of the other constitutional protections,” said Benjamin Waxman, a Miami lawyer who specializes in post-conviction appeals.
PROVING A LAWYER-CLIENT BOND
Waxman signed a Jan. 31 letter to the corrections department along with a dozen other opponents—mostly public defenders and nonprofit legal aid groups that must contact inmates to identify whom they should represent. They regularly sue the DOC over allegedly cruel and illegal conditions and practices, often in class actions.
“The proposed revision raises a host of legal, constitutional and logistical difficulties that will result in incarcerated people not being made aware of their rights and will impede their access to legal representation,” the letter states.
“It’s really gonna make it difficult for prisoners to get lawyers and for us to communicate with them,” said Dante Trevisani. He is executive director of the Florida Justice Institute, a nonprofit advocate and litigator for prisoners.
“If we don’t know what’s happening on the inside, we can’t bring it to light,” Trevisani said. His organization is leading the charge against the new phone rule.
The DOC proposal would prevent lawyers from calling inmates until they can prove the two have a lawyer-client relationship. It doesn’t specify how this will be done.
WHEN ‘CONFIDENTIAL’ ISN’T REALLY
But in order to form that relationship, defense lawyers say, they must first talk to potential clients–not just send letters, the alternative prison officials prefer.
“Attorneys shall not be permitted to make prior arrangements for prospective inmate clients to receive a private telephone call from the attorney on an unmonitored telephone,” the new rule says.
Conversations on unmonitored phones are confidential –- in theory, though not always in practice, a defense lawyer said.
“Most reasonably skeptical attorneys would have some concern that it may well be recorded and periodically those kinds of conversations that are recorded come to light,” Waxman said. “This is a violation of the attorney-client privilege and there are all kinds of sanctions a defense attorney might seek.”
Letters are not private; prison staffers read them. So if a lawyer wants to reach out to an inmate and offer to file a lawsuit challenging some egregious prison condition, for instance, the lawyer and inmate have to know they’re sharing the letter with the prison, the potential defendant.
LAWYERS CAN’T SCREEN WITNESSES
Under the new rule, after getting a letter from a prospective lawyer, an inmate could decide to submit a formal request for a private call with the lawyer. But “a lot of people don’t know their rights and they’re not gonna reach out to attorneys on their own,” said Jacqueline Azis, a staff attorney with the ACLU of Florida.
“Others don’t have the means or ability, they can’t read or they can’t communicate well by mail. So these types of requirements will make it difficult if not impossible to speak to those individuals who have limitations,” Azis said.
A defense lawyer might have to track down a witness to testify on behalf of an inmate client. Since the lawyer and witness have no lawyer-client relationship, however, the new rule would prohibit them from talking on the phone.
Waxman gave an example based on his own experience of how important that kind of witness can be. A confidential informant could exonerate his client by testifying that the police arrested the wrong person for drug-dealing.
But the potential star witness might be housed at a prison facility across the state. “At least initially you’re gonna want to talk to that person over the telephone,” he said. The new rule would make that impossible.
“There are instances where this rule would really very much interfere with an inmate’s ability to mount a defense to pending charges or a conviction already obtained,” Waxman said.
‘CLARIFICATION FOR CALLS’
DOC spokesman Paul W. Walker did not answer emailed questions about the proposed attorney-inmate phone rule in time to meet Florida Bulldog’s deadline. He blamed a high volume of media inquiries for the delay, then didn’t respond to a follow-up email from Florida Bulldog.
The reason for changing the rule at this time is unclear. An introduction to the proposed new rule says the “purpose and effect” of tweaking inmate-lawyer communication is to provide “additional clarification for calls to attorneys.”
It says nothing about evidence of confusion or problems with the existing rule that allows a lawyer to, for example, call an inmate whose wife approached the lawyer saying she wants her husband to hire new counsel.
The Florida Bar prohibits attorneys from cold-calling prospective clients as if they were telemarketers peddling timeshares. Lawyers who solicit business from anyone who isn’t a relative risk losing their license to practice law.
THE NO-SOLICITATION RATIONALE
Last week, at the end of a public Zoom hearing on the new rule, DOC staff attorney Amy Matlock suggested a more compelling reason for the change: It aims to eliminate verboten phone solicitation.
“That doesn’t really make sense to me because why is the DOC concerned about an issue of professional ethics and responsibility that the Florida Bar oversees?” Waxman asked. “If there were a rash of complaints by incarcerated defendants that they were being solicited by unscrupulous attorneys, you would think that somehow those complaints would be waged with the Florida Bar.”
Other opponents said the anti-solicitation rationale is nonsensical, misleading or a pretext for silencing inmates.
“Are there lawyers cold-calling people in prison? It’s not a very lucrative area to go into,” Trevisani of the Florida Justice Institute said.
The ACLU’s Azis said groups like hers and the Florida Justice Institute qualify for a long-recognized exception to the rules against solicitation.
“We are ethically allowed to speak to people in custody in Florida prisons and talk to them about potential legal options they may have because we’re public interest organizations, the work we do benefits the public,” she said.
When she listened to Matlock speak at the Zoom hearing, “I was quite frankly shocked that DOC is unaware of that and is using their misunderstanding of the law to rationalize this new phone rule,” Azis said.
She said she has no idea if the department will back off the unpopular measure, but she’s sure of one thing.
“DOC is aware that they’re not going to be able to pass this rule without everyone knowing about it,” Azis said. “They know we’re keeping an eye on what they do.”