Serious reform is needed when it comes to communicating with clients who are incarcerated.

I am having great difficulty communicating with my clients in state prison under new policies that restrict lawyer-client communication. This is becoming a major problem. What can I do?

Samuel C. Stretton.

Yes, it appears it is a major problem. This writer over the last four or five weeks has received maybe 20 or 30 more returned letters from the state correctional institutions. The envelopes are open and it has a form letter stating "the enclosed correspondence is the original legal correspondence sent by you to the address. Under the DOC policy, that was in effect at the time, the correspondence was opened in the presence of the addressee and copied. Copies were provided to the addressee and the resealed original was retained for confidential destruction. The addressee subsequently requested that the original be returned to the sender instead of being destroyed."

These letters were from 2018 and some were from March, April or May 2019. Recently, there were several from September.

Further, letters sent using the new system with the time code and the control number are often returned. One doesn't hear from their clients like they used to. In other words, the system is a disaster.

This writer talked to other lawyers and they are having the same problems and issues.

It's very distressing that confidential letters are opened in the presence of the inmate and read with them and then kept by the prison and then ultimately returned months and months later. Whether these inmates ever received the letter is questionable because many of the inmates never responded and that's not the normal reaction. If one writes an inmate, they most always respond.

Things are starting to heat up now when a lawyer let this writer know that she heard from one or two inmates who she sent letters. Those letters supposedly had an odor of drugs, according to the prison scanning machine. These inmates were then disciplined. The lawyer heard nothing from Department of Corrections, but the inmates contacted the lawyer and said they were told the letters were sent to the state police. That would be, of course, outrageous. If an odor is on the letter and they are disciplining inmates without hearing from the lawyer and then investigating that lawyer when there is no indication the lawyer did anything improper, something is terribly wrong.

In the prison, many people touch letters before they get to the inmates. Many lawyers send them the copies or have secretaries do so. The letters are opened by people in the prison.

The bottom line is the prison system is creating a very hostile situation that precludes easy and confidential communication with the clients. These restrictions were done under some bogus theory of protection. There was no need for any correction and there has been a gross overreaction.

The American Civil Liberties brought a suit trying to resolve the matter. The resulting settlement was extremely unsatisfactory and has not solved the problem.

The system may work for a big organization that has a few clients. It does not work for those in the trenches who have to communicate regularly.

This system results in a severe breach in the ability to communicate with state prison inmates and violations of the attorney-client privilege. There is absolutely no justification for this and the Department of Corrections needs to immediately change these policies and reinstate the former policies that allowed lawyers to write their clients directly and not open these letters. There is absolutely no justification for this.

Letters are being apparently read by the institution, held for months, no one knows if clients are getting letters or not, and clients are advising lawyers when they can communicate that they are not receiving the letters. Interfering with the ability to communicate with one's clients is a serious matter. Particularly if the prison system might be the defendant in lawsuits. Suggesting  an odor as a basis for discipline and then sending matters to the state police about a lawyer is extremely chilling and just totally unwarranted.

Pennsylvania is a classic example where the Gideon concept that persons who are poor are entitled to lawyers in criminal matters has been greatly undermined. There is no statewide funding for public defender's offices and conflict counsel is a prime example of this. The counties' funding system for court-appointed counsel and public defenders is atrocious and miserably low in fees and reimbursement. Now lawyers can't even communicate with their state prison clients without the prison reading and looking at everything.

It is time for some serious reform. This doesn't mean major committees investigating and reviewing. It's pretty straightforward information. If you are going to arrest people and charge them with crimes in Pennsylvania, then provide adequate statewide funding and don't leave funding of indigent defendants to the counties, many of which don't have sufficient funds. Second, when people are incarcerated, they have a right to counsel for not only criminal defense, but criminal appeals or criminal post-conviction hearing motions or criminal habeas corpus motions. They also have a right to counsel in civil rights matters or counsel for personal issues. The state has no right to interfere or restrict and make it extremely difficult or harass lawyers who are legitimately communicating with their clients. This has to be stopped now.

Lawyers should be able to write their clients without facing an impossible project where letters are returned repeatedly and intimidation of clients because of some supposed smell or odor that some supposed machine picks up. It's a sad day for the practice of law in Pennsylvania.  There is a definite need for reform.

Joint defense agreements should be avoided because of potential problems down the line.

I am involved in a criminal case where there are multiple defendants. The lawyers on the defense have agreed to a joint defense agreement. I am reluctant to enter into it, but would like to know more about it and if it's a wise decision. Is it ethical?

A joint defense agreement is something that probably should be avoided and is not really favored by most courts. But it does have a value if multiple defendants have a common interest or a common defense. It allows them to participate and work together and share evidence together, but maintain the attorney-client privilege. Lawyers can, therefore, share confidential information without concern that the privilege is not broken because they are speaking to a third party, i.e., the other defendants and their lawyers.

The problem with the joint defense agreement is one cannot predict the future. Any criminal lawyer knows that what starts out as a common bond quickly changes as reality sets in or plea offers are made and cooperation is agreed to.

One of the problems with a joint defense agreement is that it could end up resulting in the lawyers being disqualified because they were all sharing the same confidential information in communications. If one defendant decides to cooperate with the government and becomes a government witness, the lawyers can't use confidential information against that defendant under Rule 1.6 of the Rules of Professional Conduct. In other words, it's a messy area with the potential for real problems.

The best advice that can be given to a joint defense agreement is to have it in writing among all the lawyers and participants. As part of that agreement, it might be a wise idea to clearly state that if one person decides to get out of the joint defense agreement, that the privilege can't be waived without the consent of all the other participants in the joint defense agreement. That seems to be a critical aspect. It has to be absolutely clear that the privilege can't be waived by just one party when there is a joint defense agreement and this should be reflected in the agreement.

The other problem with joint defense agreements are based on common interest. If later, a conflict of interest arises that wasn't foreseen or understood when the joint defense agreement was entered into, what happens to the agreement and the common interest that supported the agreement?

It appears a court might find that the later-discovered conflict breaks the common interest and undermines the protections of the joint defense agreement.

One of the other problems with a joint defense agreement is that if one of the members decides it is in their interest no longer to go to trial but to work out a deal with the government and cooperate, can they fully do so because of the joint defense agreement? The now-cooperating defendant trying to get some advantage from his cooperation might find that they are limited in what they can do and find that the government will take that limitation into account and not fully credit his cooperation. A joint defense agreement can create problems for those who leave and sometimes for those who remain.

As noted above, one of the major issues is what happens if someone leaves and decides to cooperate or leaves the joint defense agreement? That raises a major problem, because now the person who left becomes a witness for the prosecution later and then that may well result in the disqualification of the other lawyers because of the receipt of the confidential information.

When entering into a joint defense agreement, you should specifically try to address some of these concerns. A joint defense agreement started out as a good idea of a joint defense with a common interest. But, unfortunately, it often ends up with everyone going their own separate way. The agreement can have ramifications for whether lawyers can remain in the case. It can have issues for the court because it can delay a trial if lawyers have to disqualify themselves. That could greatly delay trials and greatly increase the expense of a defense. Also, these agreements can interfere with the prosecution's ability to prosecute the case and gain cooperation from individuals.

Having said that, there is an advantage to joint defense agreements, but there are also serious downsides.

From this writer's standpoint, the best practice is not to have a joint defense agreement because of the potential problems down the line. The bottom line is the practice of law and trial is never a joint sport. It's a solo occupation. The joint defense agreements go against that concept and try to make trials some sort of a collaborative effort, which in reality they aren't. But if one is going to enter into a joint defense agreement, they should be very careful of the potential or unforeseen or adverse consequences.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.