What must a public defender do after learning that jail attorney-client conferences were being monitored?

Plain-English summary

A public defender discovered that conversations between defender attorneys and detainees in the "Quiet Rooms" at a juvenile detention facility, rooms set aside for private conferences, were being monitored by detention staff. She had notified the presiding juvenile court judge and stopped holding conferences there until the monitoring ceased, and asked whether she had any further ethical duties.

The committee concluded she did, framing the duties around the constitutionally protected right to counsel in juvenile proceedings (In re Gault) and the centrality of privileged attorney-client communication. It analyzed three classes of clients. For future conferences, ER 1.6(a) barred further conferences in the monitored rooms until confidentiality was assured, but ER 1.3 diligence imposed an affirmative duty to push the judge and detention personnel for a truly confidential area, to the point of petitioning the court. For present clients whose prior conferences had been monitored, the committee concluded that, under Arizona law guaranteeing private consultation with counsel (State v. Warner), those clients had suffered a technical violation of the right to counsel, so the lawyer should examine files to assess prejudice and, where appropriate, bring the matter before the court for a remedy under the competence and diligence duties of ER 1.1 and ER 1.3.

For former clients, the committee acknowledged the analysis was harder, given the difficulty of locating clients, possible mootness, and uncertainty about whether monitoring actually occurred. It concluded that the duty of confidentiality extends to former clients (ER 1.6 Comment), that ER 1.16(d) requires reasonably practicable steps to protect a former client's interests after representation ends, and that ER 1.4 requires keeping clients informed. At a minimum, former clients still subject to juvenile jurisdiction who were prejudicially affected should be notified. The committee declined, for lack of facts, to prescribe a specific notice procedure or to opine on whether more than notice was required, noting ethical directives must be balanced against the cost to the public defender's office.

The opinion concluded with a reporting point: if the inquiring attorney was aware of any prosecutors, other lawyers, or judges who authorized, knew of, or took advantage of the monitoring, she may have an ER 8.3 obligation to report that information to the appropriate professional or judicial authorities.

Currency note

This opinion was issued in 1987, before the State Bar of Arizona's adoption of the 2003 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Is notifying the judge and stopping the monitored conferences enough?

A: The opinion concluded it is not; the committee read ER 1.3 to require affirmatively pushing for a confidential conference space, to the point of petitioning the court.

Q: What about clients whose conferences were already monitored?

A: The committee concluded the lawyer should examine those files to assess prejudice and, where appropriate, bring the matter to court for a remedy, because those clients suffered a technical violation of the right to counsel.

Q: Are there duties to former clients?

A: Yes; the opinion concluded that, at a minimum, former clients still subject to juvenile jurisdiction who were prejudicially affected should be notified, under ER 1.6, ER 1.16(d), and ER 1.4.

Q: Does the lawyer have to report anyone?

A: The committee concluded she may have an ER 8.3 duty to report any prosecutors, lawyers, or judges who authorized, knew of, or exploited the monitoring.

Background and rules framework

The opinion applied a cluster of rules: ER 1.6(a) (Model Rule 1.6) on confidentiality, ER 1.1 and ER 1.3 (Model Rules 1.1 and 1.3) on competence and diligence, ER 1.4 (Model Rule 1.4) on communication, ER 1.14(a) (Model Rule 1.14) on clients under a disability, ER 1.16(d) (Model Rule 1.16) on duties after termination, and ER 8.3 (Model Rule 8.3) on reporting misconduct. It read these against the constitutional right to counsel and Arizona case law guaranteeing private consultation with counsel.

Citations and references

Rules of Professional Conduct:

• ER 1.6(a) / Model Rule 1.6 (confidentiality)
• ER 1.1, ER 1.3 / Model Rules 1.1, 1.3 (competence; diligence)
• ER 1.4 / Model Rule 1.4 (communication)
• ER 1.14(a) / Model Rule 1.14 (client under a disability)
• ER 1.16(d) / Model Rule 1.16 (duties after terminating representation)
• ER 8.3 / Model Rule 8.3 (reporting professional misconduct)

Cases:

• In re Gault, 387 U.S. 1 (1967), right to counsel in juvenile proceedings
• State v. Warner, 150 Ariz. 123, 722 P.2d 291 (1986), right to private consultation with counsel
• State v. Holsinger, 124 Ariz. 18, 601 P.2d 1054 (1979), centrality of privileged communications

See also

• AZ Ethics Op. 87-13: Public Defender Independence
• AZ Ethics Op. 87-10: Lawyer as Witness
• AZ Ethics Op. 87-17: Ex Parte Contact With an ALJ

Source

• Landing page: https://tools.dev.azbar.org/RulesofProfessionalConduct/ViewEthicsOpinion.aspx?id=568

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

9/1987

The juvenile public defender who learns that conversations between attorneys and detainers at the juvenile detention facility are monitored by detention staff personnel has an ethical duty to represent the juvenile the same as any other client. That duty extends to protecting the juveniles right to effective counsel, which includes privileged communications.

FACTS

The inquiring attorney has discovered that conversations between public defender attorneys and detainees at the Juvenile Detention Facility in X County, held in “Quiet Rooms” segregated for private conferences between defender attorneys and detainees, were being monitored by Detention Staff personnel. The inquiring attorney has notified the Presiding Judge of the Juvenile Court about the monitoring, and discontinued further client conferences in the Quiet Rooms until all monitoring ceases.

QUESTION

Has the inquiring attorney any further ethical duties beyond notifying the Presiding Judge of the monitoring and discontinuing client conferences until privacy is assured?

ETHICAL RULES INVOLVED

ER 1.1. Competence

ER 1.3. Diligence

ER 1.4. Communication

ER 1.6(a). Confidentiality of Information

ER 1.14(a). Client Under a Disability

ER 1.16(d). Declining or Terminating Representation

ER 8.3. Reporting Professional Misconduct

OPINION

The right to counsel in juvenile proceedings is constitutionally protected. In re Gault, 387 U.S. 1, 87 S. Ct.1428, 18 L. Ed. 2d 527 (1967). The lawyer has an ethical duty to represent the juvenile the same as in any normal lawyer-client relationship. ER 1.14(a). The right to counsel extends to proper procedures assuring that right in addition to the mere appointment of counsel. See State v. Yard, 109 Ariz. 198, 200, 507 P.2d 123, 125 (1973). Privileged communications between attorney and client are central, not only to the client's procedural guarantee of effective counsel, but to the entire justice system. See State v. Holsinger, 124 Ariz. 18, 22, 601 P.2d 1054, 1058 (1979).

The ethical duties of the inquiring attorney to her clients may be examined separately as to three classes of clients: (1) those present and future clients as to whom conferences have yet to be held; (2) those present clients conferences with whom have been held in the Quiet Rooms; and (3) former clients whose cases may have been prejudicially impacted by the monitoring of the Quiet Room conferences.

1. Future Conferences

Under the Rules of the Supreme Court of Arizona, an Arizona attorney has an obligation to maintain inviolate the confidences and preserve the secrets of a client. Rule 41(f), 17A A.R.S. Because of that obligation, the attorney may not reveal any information relating to the representation of the client without client consent. ER 1.6(a). Because the inquiring attorney is aware of the monitoring, any further conferences with clients prior to a guarantee of their confidentiality would violate ER 1.6(a). The inquiring Attorney’s notifying the Presiding Judge of the monitoring and ceasing further conferences with clients in the Quiet Rooms until the monitoring is discontinued satisfies the confidentiality duty.

Discontinuing conferences, however, is only half of the attorney's obligation. ER 1.3 provides that a lawyer shall act with reasonable diligence and promptness in representing a client. The failure to hold any conferences would prejudice the interests of the client. And, the longer the delay, the greater the risk. Consequently, the inquiring attorney has an affirmative duty to push the Presiding Judge and Detention Facility personnel for a truly confidential area to confer with clients, to the extent of petitioning the court for such protection.

2. Present Clients, Prior Conferences

The Arizona Supreme Court on repeated occasions has stated that, under Arizona law, the right to counsel includes the right to consult in private with an attorney. Effective representation is not possible without the right of an accused defendant to confer in private with his or her attorney. State v. Warner, 150 Ariz. 123, 127, 722 P.2d 291, 295 (1986), State v. Holland, 147 Ariz. 453, 455, 711 P.2d 592, 594 (1935). The monitoring of juvenile detainees' communications with counsel would seem to violate this protection under Arizona law. In Warner, the Supreme Court went on to state that the right to private consultation with counsel prevails regardless of the state's purpose for the intrusion. (150 Ariz. at 127, 722 P.2d at 295) ER 1.1 provides that the lawyer shall represent the client in a competent manner. ER 1.3 further dictates that such competent representation shall be carried out in a reasonably prompt and diligent fashion. Existing clients of the inquiring attorney who have unknowingly engaged in monitored conferences have suffered a technical violation of their right to counsel. With respect to these clients, files should be examined in an attempt to determine the extent of potential prejudice. Further, if appropriate, cases should be brought before the court to determine a suitable remedy for any prejudicial violation.

3.Former Clients

The determination of the inquiring attorney's ethical obligation to former clients whose cases may have been prejudicially impacted by the monitoring is more difficult. Ethical considerations must be tempered with practical concerns such as the inability to locate former clients, possible mootness of remedy of juveniles who have become adults, and uncertainty whether monitoring in fact occurred. Certainly not all former clients, even those involved in the monitoring, were prejudiced.

An attorney's duty of confidentiality extends to former clients. ER 1.6, Comment. ER 1.16(d) provides that, after termination of representation, a lawyer shall take steps reasonably practicable to protect a client's interests. Finally, ER 1.4 requires that a lawyer communicate with a client to keep the client reasonably informed as to the status of the case. At a minimum, former clients still subject to possible juvenile jurisdiction and who were prejudicially affected by the monitoring should be notified so to alert them to the possibility that their interests may have been prejudiced. Any follow-up action after such notice would depend upon whether the former client again seeks representation by the inquiring attorney. If so, the ethical duties would extend to them the same as to any other client. If the former client seeks other counsel, the inquiring attorney should remain available to cooperate with the other counsel in defending the client's interests.

The committee hesitates to present a specific procedure which should be followed in giving notice to former clients. The committee also refrains, for lack of relevant facts, from rendering an opinion on whether ethical considerations require action beyond the mere giving of notice. Ethical directives must be reasonably balanced by the financial cost to the public defender's office and the maximization of benefits to former clients. Suggestions come to mind -- such as a form letter to the last available mailing address of a former client. Perhaps a procedure can be set up in conjunction with the Juvenile Court. It might also be possible to have the Juvenile Detention Facility help absorb some or all of the costs of giving notice. The ethical concern is that of protecting the rights of former clients who may have been unduly prejudiced by their inability to get full privacy of their communications with counsel.

The last concern of the committee pertains to the possible authorization or use of the secretive monitoring of the privileged communications. If the inquiring attorney is aware of any prosecutors, other lawyers, or judges who authorized, or who had knowledge of or took advantage of the information gained by the monitoring, she may have an ethical obligation under ER 8.3 to report such information to the appropriate professional or judicial authorities.

© State Bar of Arizona 1987