When a person accused of a crime hires a defense attorney, every communication between the defendant and his or her attorney is privileged communication, meaning anything the accused tells the attorney cannot be divulged by the attorney nor can the attorney be forced to give up information the client has revealed. With certain exceptions, this also applies to communications between a potential client and an attorney, such as a consultation with an attorney before deciding whether to hire the attorney.

The purpose for this privilege is self-evident: If the client is not able to freely speak to his or her attorney, the attorney may be hindered in providing an effective legal defense.  Although not a constitutional doctrine, the privilege implicates the constitutional protections of the Fifth Amendment (right against self-incrimination) and Sixth Amendment (right to legal counsel).  As such, the privilege is one of the oldest recognized confidential communication privileges.

Imagine if this privilege did not exist and the prosecution or law enforcement could be free to learn the details of communications between an attorney and client, whether surreptitiously or by force. Clients would rightfully be concerned about telling their attorney everything and the attorney could have a serious disadvantage defending such a client. That is why, with few exceptions, law enforcement cannot listen in on conversations a client has with his or her attorney and cannot subpoena— or otherwise legally force— information a client has given his or her attorney.

This right is easily protected when the client is having face-to-face communications in the attorney’s office.  But what about attorney communications when the client is in jail? When the communication is face-to-face, the jail deputies cannot monitor the communication; their only role is security. If, for example, a deputy violated the confidence and listened in on the communication, any evidence gleaned would be inadmissible in court.  You may be thinking that there is reasonable concern that the confidentiality of the communication could be breached and covertly imparted to the prosecution, which then uses that information in ways that cannot be easily discovered.  This is not supposed to happen and I am not saying it does, but sad to say, in Orange County it is a distinct possibility.

Jail inmates also often communicate with their attorneys over the jailhouse phones. As with face-to-face jail visits, this communication is privileged and may not be monitored by jail authorities. In recent years, Orange County Jail may have violated this privilege. As if Orange County jail didn’t have enough scandal, it was recently revealed that since 2015, over 1,000 attorney-client phone conversations were recorded through the Orange County Jail phone system.  This is a clear violation of the attorney-client privilege.

The revelation came only after a defense attorney in an attempted-murder case began investigating allegations that jail authorities had been listening in on conversations his client had when his client was representing himself. This may or may not have been in violation of the privilege but the defense attorney, after being hired, brought these allegations to court in an attempt to get his client’s charges dismissed.  At this hearing, an Orange County Sheriff’s Department employee was called to testify where it was revealed that a third-party vendor with which Orange County Jail contracts to handle its phone system had informed the sheriff’s department of a “technical error” that resulted in the unlawful recordings.

Records also showed that the sheriff’s department accessed many of those recorded calls and had taken no action to alert the defendants or their attorney that the calls were recorded. This is unmistakable evidence that the sheriff’s department was aware of the “technical error” but did nothing about it. While technical errors do occur, this is more than just a glitch. So far, there is no evidence that these conversations were listened to or passed on to the district attorney, but because nothing was done to rectify the error until it was revealed under court testimony, Orange County may have another jailhouse scandal on its hands.

Orange County criminal defense attorney William Weinberg will fight for your rights to the full extent allowed under the law. Contact him for a free and confidential consultation regarding your criminal matter at 949-474-8008 or by email at bill@williamweinberg.com.