jump to Third Circuit information
State Information
In February 2020, the National Association of Criminal Defense Lawyers asked its membership about how it communicated with clients in custody. The survey focused particularly on lawyers’ ability to communicate with their detained and incarcerated clients. The below data is focused on findings regarding confidentiality, a key requirement of attorney-client communication.
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Howard R Young Correctional Institution Note: Communications are provided upon written or oral request by prosecutor |
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Federal Information
To establish a Sixth Amendment claim based on government intrusion into a defendant’s attorney-client privilege, the Third Circuit examines whether there was a knowing invasion of the attorney-client relationship and whether the confidential information was disclosed to the government.{1} 1 United States v. Mitan, 499 F. App'x 187, 192 (3d Cir. 2012). Defendants in Third Circuit courts must show prejudice from the intentional intrusion to constitute a Sixth Amendment violation, but there are “overwhelming considerations militating against . . . weighing how prejudicial to the defense the disclosure is.” (emphasis added).{2} 2 Id. (quoting Levy, 577 F.2d at 208). As such, the prejudice requirement is met where an intentional intrusion into the attorney/client relationship leads to disclosure of privileged information to the government.{3} 3 See United States v. Levy, 577 F.2d 200, 209-10 (3d Cir.1978). “[T]he inquiry into prejudice must stop at the point where attorney-client confidences are actually disclosed to the government enforcement agencies responsible for investigating and prosecuting the case.” In U.S. v. Levy, the Third Circuit named three factors which must be met for a successful claim of unconstitutional government intrusion: (1) intentional government conduct, (2) attorney-client privilege, and (3) the release of confidential legal strategy.{4} 4 United States v. Levy, 577 F.2d 200, 209-10 (3d Cir.1978); United States v. Mitan, 499 F. App'x at 192, “When those circumstances coalesce, Levy dispenses with an inquiry into whether the defense was prejudiced.” Id.
In United States v. Levy, the defendant appealed the district court’s denial of a motion to dismiss the indictment against him after a government informant attended his attorney-client meetings and relayed information from those meetings to the DEA and to the prosecution.{5} 5 United States v. Levy, 577 F.2d 200, 204-05, 209-10 (3d Cir.1978) (finding that the DEA attempted to obtain information about the matter and did learn that the defense strategy would be to concentrate on the credibility of two government witnesses. Moreover, the record established unequivocally that the prosecutor also became privy to this strategy). Because a Sixth Amendment violation must be found where, as here, defense strategy was actually disclosed or where the government enforcement officials sought such confidential information, the next step for the court was to decide the appropriate remedy.{6} 6 Id. at 210. The Third Circuit ruled that a dismissal of the indictment was the only way to remedy this constitutional violation. “The disclosed information is now in the public domain. Any effort to cure the violation by some elaborate scheme, such as by bringing in new case agents and attorneys from distant places, would involve the court in the same sort of speculative enterprise which we have already rejected.”{7} 7 Id.
In United States v. Mitan, the defendant, who was pro se, appealed the district court’s denial of a motion to dismiss his indictment.{8} 8 United States v. Mitan, 499 F. App'x 187 (3d Cir. 2012). The defendant argued that some of the phone calls he placed to family members on a monitored line were privileged or confidential work product.{9} 9 Id. at 189-90. The Third Circuit found, using the three-factor test from Levy, that the defendant could not meet the first requirement of showing an intentional government intrusion.{10} 10 Id. at 192. This is, first, because Mitan was on notice from the outset that his non-legal phone calls would be recorded by the Bureau of Prisons, and that he had the option to contact the FDC to request an unmonitored attorney call. Second, the government had established a taint team that would review Mitan’s monitored phone calls to avoid any disclosure of confidential information.{11} 11 Id. at 189-90. (“If any communication concerning legal strategy was intercepted, it was unintentional—certainly far from the level of intentional invasion present in Levy.” Finally, the Court rejected Mitan’s argument that the monitoring of his phone calls would warrant the “extreme sanction” of the dismissal of his indictment.{12} 12 Id. at 193.
(1st amendment claim!) In Williams v. Price, defendants brought a § 1983 claim under the First Amendment because the prisoners confined in the capital case unit (death penalty unit) at the State Correctional Institution at Greene were being forced to meet with their attorneys in settings that enable guards and other persons to overhear their confidential discussions.{13} 13 Williams v. Price, 25 F.Supp.2d 623, 630 (W.D. Pa. 1998). Defendants brought this claim under their First Amendment right to free speech as the Sixth Amendment right to counsel does not apply after their first appeal.{14} 14 Id. at 625-36. This court held that the First Amendment right to free speech had not clearly been applied to assure confidential oral communications between prisoners and their attorneys, but “it should be at least as clear as defendants’ recognized right to confidential written communications.”{15} 15 Id. at 628. (“Now that the constitutional right of access to court is no longer available to prisoners to preserve the confidentiality of their communications with their counsel unless they can meet the difficult test of injury set forth in Lewis, or unless the Sixth Amendment is available, they will reasonably look to the right of privacy to assure their right to confidential communications with counsel. This seems to be an appropriate application of the right of privacy.”) As such, Plaintiffs' Motion for Summary Judgment was granted.
