W.D.Tex.: Criminal defense lawyers state 4A claim against jail phone co. for recording attorney-client calls

The plaintiff lawyers group, an association of criminal defense lawyers, have standing in their own right and individually to complain of recording of attorney-client telephone calls from the Travis County Jail. They also state a claim under the Fourth Amendment for unreasonable search and seizure because they have a reasonable expectation of privacy in their attorney-client calls. Securus on its website says it doesn’t record attorney-client calls, but the plaintiffs plausibly allege otherwise. Austin Lawyers Guild v. Securus Technologies, 2015 U.S. Dist. LEXIS 178047 (W.D.Tex. Feb. 4, 2015) (USMJ R&R):

D. Constitutional Claims

Defendants contend Plaintiffs fail to state a claim under the Fourth Amendment for unreasonable search and seizure, the Sixth Amendment for ineffective assistance of counsel, and the First, Fifth, and Fourteenth Amendments for denial of access to the courts. Securus further argues it is not liable for any alleged constitutional violations because it is a private entity not acting under color of state law.

1. Unreasonable Searches and Seizures

The Fourth Amendment protects individuals from unreasonable searches and seizures by the government. A “search” extends to the recording of oral statements and conversations. Katz v. United States, 389 U.S. 347, 353 (1967); Berger v. New York, 388 U.S. 41, 51 (1967). The government cannot monitor or record a call without violating the Fourth Amendment if the parties have a reasonable expectation of privacy in their conversation. Katz, 389 U.S. at 351-52. See also United States v. Jones, 132 S. Ct. 945, 950-51 (2012) (indirectly reaffirming Katz). To establish a Fourth Amendment privacy claim, a plaintiff must demonstrate he had an actual, subjective expectation of privacy, and that his expectation of privacy is objectively reasonable. Zaffuto v. City of Hammond, 308 F.3d 485, 488 (5th Cir. 2002) (citing Katz, 389 U.S. at 351-52).

Pretrial detainees and prisoners do not enjoy the same constitutional protections as unincarcerated individuals. See Hudson v. Palmer, 468 U.S. 517, 527 (1984) (inmate has no reasonable expectation of privacy in prison cell); Bell v. Wolfish, 441 U.S. 520, 556 (1979) (constitutional rights of inmates are “limited by the legitimate goals and policies of penal institution”). Again, it is generally acceptable to record and listen to inmate telephone calls. Riviera, 546 U.S. 1023; Lanza, 370 U.S. at 143. However, the question here is whether recording, listening to, and sharing detainees’ confidential attorney—client telephone calls is a violation of the Fourth Amendment.

Defendants argue Plaintiffs’ Fourth Amendment claim fails because attorneys cannot assert the attorney—client privilege, as that privilege is properly held and asserted by the client. See In re Grand Jury Subpoena, 220 F.3d 406, 408 (5th Cir. 2000) (attorney—client privilege is held by client). While the attorney—client privilege is held by the client, the Fourth Amendment reasonable expectation of privacy standard is distinguishable from the pure attorney—client privilege. All parties who have a reasonable expectation of privacy in a conversation are protected by the Fourth Amendment. See Gennusa v. Shoar, 879 F. Supp. 2d 1337, 1348 (M.D. Fla. 2012), aff’d 748 F.3d 1103 (11th Cir. 2014) (local criminal defense attorney and client had reasonable expectation of privacy when communicating with pretrial detainee client in interrogation room when officials led attorney to believe conversations would not be monitored); Lonegan v. Hasty, 436 F. Supp. 2d 419, 435 (E.D.N.Y. 2006) (“Although the privilege afforded to attorney—client communications generally belongs to the client, not to the attorney, see United States v. Goldberger & Dubin, P.C., 935 F.2d 501, 504 (2d Cir. 1991), the existence of robust protections for attorney—client communications makes [attorney-plaintiffs’] expectation of privacy in their conversations with Detainees reasonable.”).

Both attorneys and clients have an objectively reasonable expectation of privacy in confidential communications between an attorney and client. See Upjohn Co. v. United States, 449 U.S. 383 (1981) (attorney—client privilege is the “oldest of the privileges for confidential communications known to the common law”). Fourth Amendment protection thus extends to attorneys engaged in confidential communications with their clients and the expectation of privacy in those communications is objectively reasonable. Therefore, it must be determined whether the attorneys and clients had an actual, subjective expectation of privacy.

Defendants assert Plaintiffs have not alleged a subjective expectation of privacy because Plaintiffs have not alleged the recordings were made without notice. Defendants attempt to analogize the case here to United States v. Novak, 531 F.3d 99 (1st Cir. 2008), wherein the First Circuit held detainees had no reasonable expectation of privacy because they were notified that all calls were being recorded and attorney—client telephone calls were mistakenly recorded. Id. at 101. Plaintiffs allege three facts which distinguish this case from Novak and support their contention that attorneys and detainee clients had an actual, subjective expectation of privacy. First, Plaintiffs allege the Travis County Sheriff’s Office and Securus tell the public attorney—client telephone calls are not recorded. Second, Plaintiffs allege Major Long stated that attorney—client telephone calls are not recorded or listened to by his staff. (First Am. Compl. ¶ 15). Third, Plaintiffs allege “Defendants similarly lead detainees to believe” their attorney—client telephone calls are confidential. Moreover, nowhere in the complaint did Plaintiffs allege detainees or attorneys were notified that their calls were being recorded. Plaintiffs have therefore properly alleged that attorneys and detainee clients have a reasonable expectation of privacy in their confidential communications. Accordingly, this claim should not be dismissed.