By Noreen Marcus, FloridaBulldog.org
Florida prison officials want to change a rule to prevent attorneys from talking to inmates who might need their help; the new rule would put detainees who might be defense witnesses completely out of earshot.
In response, criminal defense attorneys and prisoner advocates are protesting to anyone willing to listen.
They are asking the Florida Department of Corrections (DOC) to reject proposed internal revisions to the current lawyer-inmate phone rule because, they say, the planned new rule would undermine the right to an attorney.
The proposal was released in December, a month after Governor Ron DeSantis changed the direction of the ailing agency, installing DOC veteran Ricky Dixon as its new secretary.
In recent years, the country’s third-largest prison system has been ravaged by staffing shortages and costly litigation over inadequate medical care and other substandard conditions.
If the department passes the revisions later this year, the new phone rule could collapse under a legal challenge that lawyers say is likely to mount.
“It’s directly offensive and violates the right to counsel and it’s one that the courts protect, even to this day when the courts have watered down many other constitutional protections,” said Benjamin Waxman, a Miami attorney who specializes in the post-conviction appeals.
PROVING A LAWYER-CLIENT LINK
Waxman signed a Jan. 31 letter to the corrections department along with a dozen other opponents, mostly public defenders and nonprofit legal aid groups who are to contact inmates to identify who they should represent. They regularly sue the DOC for allegedly cruel and illegal conditions and practices, often in class action lawsuits.
“The proposed review raises a host of legal, constitutional and logistical challenges that will result in those incarcerated not being informed of their rights and hampering their access to legal representation,” the letter states.
“It will really make it difficult for prisoners to have lawyers and for us to communicate with them,” said Dante Trevisani. He is executive director of the Florida Justice Institute, a nonprofit attorney and prisoner litigator.
“If we don’t know what’s going on inside, we can’t reveal it,” Trevisani said. His organization is leading the charge against the new phone rule.
DOC proposal would block attorneys from calling inmates until they can prove the two have an attorney-client relationship. It does not specify how this will be done.
WHEN “CONFIDENTIAL” IS NOT REALLY
But to build that relationship, defense attorneys say, they must first talk to potential clients — not just send letters, as alternative prison officials prefer.
“Lawyers will not be permitted to pre-arrange for prospective detained clients to receive a private phone call from the lawyer on an unmonitored phone,” the new rule reads.
Conversations on unmonitored phones are confidential — in theory, but not always in practice, a defense attorney has said.
“Most reasonably skeptical lawyers would be concerned that it could be recorded and that periodically these types of taped conversations would come to light,” Waxman said. “This is a breach of attorney-client privilege and there are all sorts of penalties a defense attorney could seek.”
Letters are not private; prison staff read them. So if a lawyer wants to reach out to an inmate and offer to take legal action to challenge a flagrant prison condition, for example, both the lawyer and the inmate need to know that they are sharing the letter with the prison , the potential defendant.
LAWYERS CAN’T FILTER WITNESSES
Under the new rule, after receiving a letter from a potential lawyer, an inmate could decide to submit a formal request for a private appeal with the lawyer. But “a lot of people don’t know their rights and they’re not going to contact attorneys on their own,” said Jacqueline Azis, an attorney at the ACLU of Florida.
“Others don’t have the means or the ability, they can’t read or they can’t communicate well by mail. So those kinds of requirements will make it difficult, if not impossible, to talk to people who have limitations,” Azis said.
A defense attorney may have to locate a witness to testify on behalf of a detained client. Since the attorney and the witness do not have an attorney-client relationship, the new rule would prohibit them from talking to each other on the phone.
Waxman gave an example based on his own experience of the importance this type of testimony can have. A confidential informant could exculpate his client by testifying that the police arrested the wrong person for drug trafficking.
But the potential star witness could be housed in a statewide jail. “At least initially you’ll want to talk to this person on the phone,” he said. The new rule would make this impossible.
“There are instances where this rule would really interfere a lot with an inmate’s ability to mount a defense against pending charges or a conviction that has already been obtained,” Waxman said.
‘CLARIFICATION FOR APPEALS’
DOC spokesman Paul W. Walker did not respond to emailed questions about the proposed attorney-inmate telephone rule in time to meet florida bulldog deadline. He blamed a high volume of media inquiries for the delay, then did not respond to a follow-up email from Florida Bulldog.
The reason for the rule change at this time is unclear. An introduction to the proposed new rule states that the “purpose and effect” of the inmate-attorney communication change is to provide “additional clarity for appeals to attorneys.”
It says nothing about evidence of confusion or problems with the existing rule that allows a lawyer, for example, to call an inmate whose wife has approached the lawyer saying she wants her husband to hire a new attorney.
The Florida Bar prohibits attorneys from cold calling potential clients as if they were telemarketers peddling timeshares. Lawyers who solicit business from anyone who is not a relative risk losing their license to practice law.
THE JUSTIFICATION FOR NON-SOLICITATION
Last week, at the end of a Zoom public hearing on the new rule, DOC staff attorney Amy Matlock suggested a more compelling reason for the change: It aims to eliminate verboten telephone solicitation.
“That doesn’t really make sense to me, because why is the DOC concerned about a matter of professional ethics and accountability that the Florida Bar oversees?” Waxman asked. “If there were a wave of complaints from incarcerated defendants that they were being solicited by unscrupulous attorneys, one would think that somehow those complaints would be filed with the Florida Bar.”
Other opponents have said the anti-solicitation logic is absurd, misleading or a pretext to silence inmates.
“Are there lawyers who cold call people in prison? It’s not a very lucrative field,” said Trevisani of the Florida Justice Institute.
The ACLU’s Azis said groups like his and the Florida Justice Institute are eligible for a long-recognized exception to the rules against solicitation.
“We are ethically permitted to speak to people incarcerated in Florida prisons and talk to them about potential legal options they may have because we are public benefit organizations, the work we do benefits the public,” a she declared.
When she listened to Matlock speak at the Zoom hearing, “I was quite frankly shocked that DOC was unaware of this and using their misunderstanding of the law to rationalize this new phone rule,” Azis said.
She said she had no idea if the ministry would back down on the unpopular measure, but she is sure of one thing.
“DOC realizes they can’t pass this rule without everyone knowing about it,” Azis said. “They know we’re keeping tabs on what they’re doing.”