My D.O.C. Client Wants a Copy of My Attorney File…Now What?

It is a common request. You represented a client at trial or on direct appeal, and now your client is in the D.O.C. and wants a copy of your attorney file to prepare a petition for post-conviction relief. Indiana Professional Conduct Rule 1.16(d) requires former counsel to “surrender papers and property to which the client is entitled . . . .” See also Ind. Code section 33-43-1-9 (threatening contempt for attorney that fails to provide former client with money or papers received on client’s behalf); McKim v. State, 528 N.E.2d 484 (Ind. Ct. App. 1988) (holding trial court must grant defendant’s request to compel production of attorney’s file). Numerous attorneys have been disciplined over the years for failing to do so. See, e.g., In re Golding, 700 N.E.2d 464 (Ind. 1998); In re Marshall, 680 N.E.2d 1098 (Ind. 1997); In re Kelly, 655 N.E.2d 1220 (Ind. 1995); In re McCausland, 605 N.E.2d 185 (Ind. 1993).

Having established a duty to comply with your client’s request, you now just need to run off a copy of your entire file and mail it to your client in the D.O.C., right? Wrong.

Over the last few years, the D.O.C. has radically changed its policies regarding offender legal mail in light of the problems it has had with controlled substances being hidden inside offender mail. According to the D.O.C., paper disguised as mail is now being sprayed or otherwise tainted with controlled substances and sent to offenders, who smoke the paper or distribute it to other offenders. Initially the paper was disguised as general offender mail, but now it is being disguised as legal mail, which is normally subject to a less rigorous examination by the D.O.C. due to its confidential nature.

Even more troubling, a few attorneys have been caught unknowingly in the trafficking scheme. On occasion, family or friends of clients will provide documents to attorneys to review and to pass on to clients. In a handful of cases those documents were laced with drugs, and attorneys unknowingly sent the documents to their D.O.C. clients.

In response, the D.O.C. began verifying every piece of legal mail sent to an offender. The verification process involved the client’s D.O.C. case manager calling the attorney and verifying the attorney actually sent the correspondence. Claiming this process has become cumbersome for case managers, the D.O.C. has unveiled a new process. Some facilities, including CIF, MCF, WCF, PuCF, and BCF, have already switched over, and the remaining facilities will begin using the new process by August 1st.

The new process involves the following: when an attorney mails a letter to a client in the D.O.C., the mail is opened in the client’s presence; the mail is photocopied and compared to the original; the original is shredded; and the sole copy is given to the client.

Setting aside for a moment the obvious concerns regarding client confidentiality, other problems are apparent in the new process. First, the D.O.C. has only black-and-white copiers; no color copies are available. (I don’t need to explain why this is going to be a problem for those clients that are very hands-on with their cases!). Second, attorneys who provide paper copies of transcripts, attorney files, etc., know how expensive and time-consuming copying those large packets can be. The thought of the D.O.C. essentially repeating that process seems wasteful and costly. Finally, the old process is burdensome for D.O.C. case managers. But it would seem making a phone call to verify a piece of legal mail would be less burdensome than following the complicated photocopying process.

Back to client confidentiality. The D.O.C. has assured us that throughout this process attorney-client confidentiality will be preserved. The D.O.C. has not claimed legal mail will not be read or carefully reviewed by D.O.C. employees, however. In fact, we know the D.O.C. is reading and reviewing legal mail outside the client’s presence. A client of mine requested a copy of his transcript, exhibits, appendix, and appellate briefs. I sent him a copy, but my copy was rejected by Internal Affairs at the Indiana State Prison. The reason? “[I]t was discovered that the enclosed disc contains personal information of persons other than the offender. Offenders are not permitted to have this information.”

When I inquired further, I was told the transcript contained addresses (presumably of witnesses) and vehicle information (of the co-defendant). The D.O.C. internal affairs analyst said she opened the legal mail in my client’s presence and immediately confiscated the mail. She then reviewed the contents of the mail on her own before informing the client by memorandum that the mail was being returned. The analyst told me that if the client had been found in possession of the information contained on the disc, he would have been guilty of a conduct violation.

The packet I sent easily exceeded 1,000 pages. The D.O.C. has indicated “personal information” includes jurors’ names, a client’s own NCIC criminal history, and anyone else’s “personal information,” which includes addresses and vehicle information. To determine whether legal mail contains such information, one would have to undertake more than a cursory glance at each page of the mail. It is hard to see how such a review can be done in a way to preserve attorney-client confidentiality.

The internal affairs analyst informed me I could redact all personal information from the large packet of documents and resend the packet to my client. But this would be extremely time-consuming. Plus, my ethical duty to provide the client with a copy of my file upon his request is not constrained by D.O.C. policy. In sum, D.O.C.’s new policy makes it impossible for me to comply with my ethical duty as an attorney.

At the same time the D.O.C. announced this new legal mail policy, it also decided that because in-person visits are now resuming attorneys will no longer be permitted to confer with their clients by telephone through a call arranged with the client’s D.O.C. case manager. Rather, attorneys are now being encouraged to use the GTL network.

The GTL network replaced the JPay system but has the same limitations for attorneys. First, the network is not confidential. Any written messages you send or video visits you participate in are monitored by the D.O.C. and are not confidential. Second, the GTL network charges a fee for each service. The fees are not exorbitant — each written message sent is 27 cents, and a video visit is $3.30 for every 10 minutes — but there is currently no option for clients to communicate with the lawyers for free on the network.

To summarize, D.O.C.’s new mail policy has made it nearly impossible for attorneys to communicate confidentiality with clients in the D.O.C. or to comply with their ethical duty to provide clients with legal documents from their cases. An attorney’s only real option for having a confidential communication with a client is to visit in person with the client at the facility. As for complying with our ethical duty to provide clients with their legal paperwork upon request, attorneys may be forced to seek the assistance of the court to compel the D.O.C. to allow the client to receive the legal paperwork from his case.