Eavesdropping on Criminal Defense Lawyers:  Attorney Overhearings as Evidence

Occasionally clients or potential clients will voice concerns about the safety of communication with their criminal defense lawyer.  It’s understandable, given all the technological advances in snooping devices.

Snooping Gizmos So You Can Eavesdrop

Surf online and you can find all sorts of ways to listen into phone conversations, as well as monitor things being said in another room or across the hall.  It’s out there for anyone.  Surf around Spytechs.com or Stealthtronic.com.  Heck, go look around E-Bay.

Just think about what’s available to the police and the prosecutors if this stuff is available to the general public.  It’s downright scary, isn’t it?

As for protecting the privacy of attorney-client communications here in Dallas, I have set up special protocols and procedures for making sure conversations are protected.   Read our Communications Policy here.

It’s an ongoing fight to make sure that discussions between lawyer and clients get the privacy they deserve, but it is still doable.  At least, right now.  Big Brother looms on the horizon ….

Are Clients and Defense Lawyers Paranoid About Being Overheard?

Now, some may think this is paranoid behavior.  A response to spy novels or TV shows where fiction may not be the same as everyday reality.

Maybe some defense clients are needlessly worried about keeping conversations with their defense lawyer safely secret.  Maybe some defense lawyers are a bit militant or doomsday by being wary of being overheard as they chat with their clientele.

Well, no.  It’s a big problem today.  See, for instance:

• Privacy Of Lawyer-Client Communications In Danger: The Growing Need For Greater Protections Of Communications Between Attorney And Client;  and
• Client Communications With Criminal Defense Lawyers – Keeping Your Lawyer and Client Communications Safe From Eavesdroppers and Hackers.

Electronic Surveillance of Defense Lawyers as Evidence

Prosecutors, police, and federal law enforcement have been all too ready to eavesdrop on defense lawyers for many years now.  This isn’t new.

The internet has advanced the power to eavesdrop, but using evidence gleaned from secretly listening into conversations has been used against defendants for decades in this country.  DECADES.

In fact, there are 40+ year old federal court cases that define how these overheard statements can be USED by the prosecutors against the defendant.  Even more disturbing, these cases discuss how ELECTRONIC SURVEILLANCE OF THE DEFENSE LAWYER’S CONVERSATION is acceptable and can be admitted as evidence.  See, e.g., United States v. Alter, 482 F.2d 1016 (9th Cir. 1973).

These standards, established by federal appeals courts, are still used today by the Office of the United States Attorney.  They are included in the current U.S. Attorney Manual, guiding federal prosecutors in Texas and across the country in how to “handle” overhearings of attorneys and defense counsel.

Read it for yourself here in Section 37:

   Attorney Overhearings Section37 by Michael Lowe, Attorney at Law on Scribd

Federal Guidelines for Using Attorney Overhearings as Evidence

It is possible for prosecutors to use to use a defense attorney’s overheard statements in electronic surveillance as evidence in their case against the defendant.  They call them “attorney overhearings.”

Note:  This applies to statements made by the defense team support staff, too, like the paralegals or legal assistants working with the defense lawyer.  We’re talking about more than just what the lawyer says (or types).

For federal prosecutors, there’s the perspective of the Sixth Amendment as a hurdle to be jumped in order to be able to do so. Usually, their concern is the Fourth Amendment and its guarantees of privacy and shields against illegal search and seizure.  Here, it’s the Sixth Amendment protections given to defendants and suspects – the constitutional right to counsel.

Have you read the Sixth Amendment lately?  It states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Recipe to Get Attorney Overhearings into Evidence

The federal prosecutors are given language to follow from a  federal  case that is 40 years old at the time this post was published, United States v. Alter, 482 F.2d 1016 (9th Cir. 1973).

Alter gives the recipe for federal prosecutors to follow in order to get attorney overhearings admitted as evidence in their case.  Here’s the recipe.

At least by affidavit, if not by witness testimony on the stand, the prosecutor must show to the judge, as delineated in the AttorneyManual:

1. The specific facts which reasonably lead the affiant to believe that named counsel for the named (defendant) has been subjected to electronic surveillance;
2. The dates of such suspected surveillance;
3. The outside dates of representation of defendant by the lawyer during the period of surveillance;
4. The identity of the person(s), by name or description, together with their respective telephone numbers, with whom the lawyer (or his agents or employees) was communicating at the time the claimed surveillance took place; and
5. Facts showing some connection between possible electronic surveillance and the (defendant) who asserts the claim . . .
6. When these elements appear by affidavit or other evidence, the government must affirm or deny illegal surveillance. See United States v. Alter, supra, at 1026.

Federal Searches for Attorney Overhearings

What’s more, the federal government also has the ability to search specifically for attorney overhearings.  Again, from the AttorneyManual:

“As guidance, searches for attorney overhearings should be resisted unless the defendant makes at least the minimal showing required by Alter, and any such conducted should be strictly limited to the time period during which the attorney legally represented the defendant. A standard similar to that in Alter is set forth in Beverly v. United States, 468 F.2d 732, 752 (5th Cir. 1972).”

Keeping Your Attorney-Client Communications Private From Eavesdroppers

It’s still possible to keep your private attorney – client communications free from snooping.  Maybe that’s going back to an Old School approach.  Face to face meetings; pen and paper.

Most experienced criminal defense lawyers consider this growing threat to their client’s constitutional rights and are vigilant in keeping up to date on maintaining their privacy.  Our offices considers this a daily priority.

For more on privacy of attorney-client communications see our web resources, read Michael Lowe’s Case Results, and read his in-depth article, PROTECTING THE PRIVACY OF CRIMINAL DEFENSE LAWYER – CLIENT COMMUNICATIONS.