Metropolitan News-Enterprise


Wednesday, July 11, 2001


Page 5


Lawyers for Idaho Violated Inmates’ Attorney-Client Privilege—Ninth Circuit


By a MetNews Staff Writer


Attorneys for the state of Idaho were properly sanctioned by a federal magistrate judge for reading privileged correspondence between prison inmates and their lawyers and attempting to use it against the inmates in a lawsuit, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel upheld the $4,500 in sanctions, as well as an injunction which bars the state from retaliating against six of the inmate plaintiffs through facility transfers or deprivation of institutional employment.  

The ruling grows out of a class action charging that prison officials routinely retaliate against inmates who assist their fellow prisoners with lawsuits. Magistrate Judge Larry M. Boyle denied class-wide injunctive relief, but granted a declaration that the state had violated the inmates’ constitutional rights along with the limited relief for the six named prisoners.  

The state’s use of inmate legal correspondence came to light after state lawyers moved to hold the ACLU attorneys representing the prisoners in contempt. The state claimed the correspondence showed that inmates were exaggerating their claims that they had been subjected to physical retaliation for bringing lawsuits.

Boyle denied the motion, saying the lawyers had fairly argued the evidence. He subsequently found that the state lawyers had violated the attorney-client privilege, rejecting their contention that the inmates had waived the privilege by leaving the documents in an area of the prison law library accessible to prison employees.

Judge M. Margaret McKeown, writing for the Ninth Circuit, agreed with Boyle that the inmates didn’t waive the privilege because they did everything they could under the circumstances to keep the papers confidential—placing them in a binder with the name of the case on the front, requiring that inmate-plaintiffs requiring access to the binder sign for it, and placing it on a restricted-access shelf in the library.

They couldn’t have done more, Boyle and McKeown said, “because there are no areas in the prison that are accessible only to inmates.”

It was “a remarkable display of chutzpah,” McKeown wrote, for the state to seek sanctions against opposing counsel on the basis of privileged correspondence. The lawyers’ willfulness, she said, was apparent from the number of times they accessed the correspondence and the fact that they continued to invade the privilege even after consulting bar officials who told them they couldn’t ethically do so.

The judge wrote:

“This happened not once, or twice, but several times over the course of over nine months. The confidential status of the letters was facially evident—they were on legal letterhead easily identifiable as that of opposing counsel....The letters reviewed litigation strategy, theories of the case, and other sensitive issues....In short, these documents were of the most sensitive kind—the kind that any trial lawyer would recognize as privileged, highly valuable, very confidential, and potentially devastating in the wrong hands.”

Judge Kim M. Wardlaw concurred in the opinion. Judge Ronald L. Gould concurred separately.

Gould said it was not certain the state’s lawyers actually intended to invade the attorney-client privilege. But he agreed the sanctions should be upheld, saying their conduct was at least reckless.

The case is Gomez v. Vernon, 99-35930.


Copyright 2001, Metropolitan News Company