It appears that the prison system is grossly interfering with the attorney-client relationship.

I am a young lawyer who has been attempting to contact some of my clients in the Pennsylvania state prison system. I am having great difficulty. Letters are opened, letters are returned, etc. Is this a major problem?

Samuel C. Stretton.

Unfortunately, yes. It's a disgraceful situation that has been allowed to continue for over a year.  It's even more upsetting since there has been litigation on this that resulted in a settlement that turned out to be ineffective and, in many ways, created more problems.

The Pennsylvania Department of Corrections, in the minds of many attorneys, conjured up some supposed issue that drugs were being sent in on paper to inmates. Whether that is true or not, no one knows. As a result, the Pennsylvania Department of Corrections prevented lawyers from writing to their clients directly and started to require that every lawyer send all inmate letters to Florida. The Florida people would then open every letter, copy it and then keep the originals and send a copy up to the inmate. This, of course, resulted in tremendous time delays in receiving mail.

There was litigation that resulted in a settlement with attorney control numbers, time codes, etc. That has been very ineffective.

Lawyers who write regularly to inmates in the Pennsylvania state correctional institutions like this writer, have been receiving almost regularly letters back. Letters that were written eight months ago, a year ago, etc. are only now sent back, sometimes five or 10 at a time. The letters were never shown to the inmates and now the Pennsylvania Department of Corrections is saying they were refused. Every day lawyers receive letters back that were sent months ago. Of course, this is the first notification that these letters weren't given to the clients. It's a very difficult way to be able to communicate and practice law.

Unfortunately, the problem has only gotten worse. Following this crazy idea that lawyers are apparently sending drugs in, the prison system has now purchased machines that supposedly "smell the odor." As a result, the prison will notify a lawyer that there is a suspicion that the letters they are sending have the smell of drugs on them or in them. The client the letter is being sent to is then placed in a disciplinary holding cell sometimes for 30 or 60 days. Of course, these letters don't have drugs and then ultimately the client wins his disciplinary matter and is released, but has to sit in the interim in solitary confinement. The lawyer is told the lawyer is under investigation. Some of the lawyers who are told they are under investigation are some of the finest and best lawyers who have spent their whole career trying to help and protect prisoners' rights. It doesn't take a brain surgeon to see what is happening and how the prison system is attempting to interfere with the attorney-client relationship and perhaps discourage lawyers from representing prisoners.

It's gotten to the point now that the prison system will not allow people to send letters or copy them unless the copying is done in the lawyer's presence. That's an impossible situation. If there is a lot of material to be sent to a client in prison, one usually takes the documents to Staples or a copy center. But that's not even allowed.

Also, every week there is a new time code for the envelope. The problem is if one sends a letter at the end of the week, the mail system, which is not as efficient as it once was, will oftentimes send the letter back because the time code has expired.

This is serious interference with the attorney-client representation and attorney-client privilege. Many of these letters are being opened and looked at. Letters aren't getting to clients. Now the Pennsylvania Department of Corrections is harassing lawyers by saying supposedly there is an odor of drugs on their letters?

One lawyer advised this writer that the document they said had an odor of drugs was a copy of an opinion on the underlying case sent by the trial judge. Some lawyers have gotten so paranoid that they wear gloves now anytime they package or send anything or copy anything to the prison.

Practicing law is hard enough and there can't be a better way to discourage people from representing clients, particularly indigent clients, than this mail process. These prison civil rights cases are very difficult and the system ought to be glad lawyers agree to take on these cases.

At a prisoner rights seminar recently, further problems were discussed. For instance, if a female attorney visits on any weekend wearing leggings as opposed to pants, then they are not allowed in to see a client in the state prison. If they have a sleeveless shirt, they are not allowed in. If their clothes have latex, they are not allowed in.

It appears that the prison system is grossly interfering with the attorney-client relationship. There also seems to be a concerted policy to violate attorney-client privilege. If private people were doing this, there would be serious consequences and perhaps even criminal consequences. The Pennsylvania prison system clearly has created many hurdles in communication for no other purpose than apparently to frustrate the attorney-client relationship.

The supposedly enlightened head of the Pennsylvania Department of Corrections perhaps ought to have that view reconsidered. But for the lawyers who are representing people and trying to help people, this is extremely frustrating.

For lawyers who are communicating with federal inmates, they also should be aware that when one is emailing their clients in the federal penitentiary system, those emails aren't confidential but are read and preserved by the prison. That, of course, came as a surprise to this writer.

The bottom line is the Pennsylvania attorney general and the lawyers and counsel for the Department of Corrections ought to review these policies and make some major changes. That kind interference with the attorney-client relationship is wrong, immoral and is a gross violation of the Rules of Professional Conduct.

It's not wise to have two separate firms, but it is allowed.

I am a practicing lawyer in Pennsylvania and I want to open up a separate law firm. In other words, I would I have two separate law firms. Is there anything unethical about doing that?

The short answer is there is nothing unethical about having two separate law firms by the same lawyer, but why would one want to do that? There are also problems that could arise with the existence of two firms.

First there could be conflict of interest issues if the lawyer has two law firms. Sometimes this arises when a lawyer has their own practice, but has a referral arrangement with another firm and is of counsel to that other firm.

In days of old, one could not be "of counsel" to a firm unless he had a prior relationship with the firm. The old disciplinary rules had that specific requirement. In this modern world, that requirement has been removed from the Rules of Professional Conduct.

Anyone can be of counsel to another law firm if there is an agreement by both the firm and the lawyer to do so. As noted, it is usually done only when there might be some joint referral of cases because both firms want their name to be seen by the clients.

"Of counsel" of two separate law firms creates problems. First, there has to be additional malpractice coverage. Second, there has to be conflict of interest checks regularly. Third, perhaps there could be litigation. If the lawyer is "of counsel," he may be sued if one of the lawyers in the firm he is of counsel with would get sued. If there are two separate firms, there is a good chance that both firms may be sued in a malpractice situation.

Further, if one is going to have two separate firms, there is an issue of whether there is anything dishonest or deceitful about it. Why is a lawyer having a second firm? Is there something wrong with the first firm? The purpose should be to help and represent clients and not in any way to avoid responsibility.

There are some old professional guidance opinions that allow lawyers to have separate firms, but suggest they could create problems. One opinion, Philadelphia Guidance Committee Opinion 93-29, points out that there might be supervisory confusion and problems under Rules 5.1 and 5.3 of the Rules of Professional Conduct.

That concept of supervision is an interesting issue and perhaps ought to be thought about a little more by the lawyers who are using what is called "virtual offices." There are still supervision responsibilities.

In conclusion, there is no prohibition for a lawyer having two separate law firms. The wisdom in doing so is another issue, but it is allowed. But if it is done then the lawyer must be prepared to deal with some of the issues that arise, such as conflict of interest, insurance issuesor supervision issues.

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.