Federal Court Sanctions Government Attorneys Who Secretly Read Prisoners' Legal Mail

Affiliate: ACLU of Idaho
September 15, 1999 12:00 am

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BOISE, ID — In a case brought by the American Civil Liberties Union, a federal court has ruled that government attorneys here violated “ethical and professional obligations” when they secretly read prisoners’ confidential legal mail.

In a stinging decision issued earlier this week, United States Magistrate Judge Larry M. Boyle granted the ACLU’s request for sanctions against Deputy State Attorneys General Stephanie Altig and Timothy McNeese, saying that their action “constituted bad faith conduct” and “manifests an attitude of complete disregard for the judicial process.”

The judge found that Altig and McNeese, who represented the state Department of Corrections in an ACLU prisoner class-action case tried last year in Boise, had “implicitly authorized and encouraged” prison employees “to secretly search for, inspect, examine, read, copy and then deliver confidential attorney-client correspondence or documents to Altig over a period of several months.”

The matter was such a serious breach of professional conduct, the ACLU said, that a former Chief Justice of the Idaho Supreme Court agreed to assist the ACLU in the case.

“For any attorney to intercept confidential legal documents is a gross ethical violation, but for senior government attorneys to do so is really beyond the pale,” said Margaret Winter, Associate Director of the ACLU’s National Prison Project. “We are relieved that the court has put a stop to this and restored the fundamental right of attorney-client privilege for prisoners in Idaho.”

Stephen Pevar, an attorney with the national ACLU whose correspondence to clients was intercepted, also welcomed the court’s ruling. “I am both gratified and grateful,” he said, speaking from his office in Denver. “At stake here, really, was the very practice of prisoner litigation,” he added. “Inmates have few rights in prison, but the right to communicate with an attorney cannot be tossed aside.”

Pevar and the ACLU’s National Prison Project had represented the Idaho prisoners in a case alleging that prison officials retaliated against them for challenging the conditions of their confinement. Judge Boyle ultimately ruled that several of the prisoners had indeed been subjected to illegal retaliation.

The secret surveillance came to light when the state’s lawyers filed a motion for contempt against Pevar, claiming that he had made statements to the court which were inconsistent with statements he made in confidential letters to his clients.

According to corrections department lawyers, Pevar’s statements in court showed he was guilty of fraud and that the prisoners’ lawsuit should be dismissed. Pevar denied this claim, and Judge Boyle ultimately rejected the charges and ordered the state’s lawyers to turn over all letters they had copied and to cease their surveillance.

In his ruling, Judge Boyle noted, “the attorney-client privilege has been recognized as among ‘the oldest of the privileges for confidential communications known to the common law.'”

Attorneys in the case are Pevar and Winter of the national ACLU, and former Idaho Supreme Court Chief Justice Charles McDevitt, now in private practice in Boise.

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