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COALITION FOR PRISONER LEGAL ACCESS
c/o Justice Now
1322 Webster St., #210
Oakland, CA 94612
510/839-7654, Ext. 1

August 8, 2002

Rick Grenz, Chief
Regulation and Policy Management Branch
Department of Corrections
Post Office Box 942883
Sacramento, California 94283-0001
By Facsimile: (916) 322-3842

RE: OPPOSITION TO PROPOSED CDC ATTORNEY-CLIENT VISITING RULES AND DEMAND FOR PUBLIC HEARING

To Mr. Grenz:

We are writing to express our outrage with the California Department of Corrections’ (CDC) new amendments to the proposed regulations affecting visitation of prisoners. In violation of the United States Constitution and state law, the amendments severely curtail prisoner access to legal assistance, infringe on attorney-client confidentiality, squelch free speech, and disparately impact small businesses. These regulations will decimate the provision of legal services to prisoners. Moreover, the Department of Corrections’ bad faith in proposing these amendments is evident in their flagrant disregard for administrative law requirements concerning notice and public comment on the amendments. We demand that all proposed language affecting §3178 of Title 15 of the California Code of Regulations be discarded, and that public hearings be held with the goal of broadening prisoners’ access to legal assistance.

Limitations on Attorney Representation

The proposed regulations significantly and unacceptably limit whom an attorney may designate to conduct a legal visit with a prisoner on his or her behalf. Current regulations already unreasonably limit attorney designation, and the proposed regulations are more narrowly tailored than those already existing. It is our position that the CDC must permit a lawyer to designate anyone whom the attorney declares is sufficiently trained and supervised to act as his or her agent for purposes of conducting a confidential legal visit with a prisoner. Failure to do so unconstitutionally hampers prisoners’ access to the courts and legal counsel and attorneys’ ability to practice their profession, as well as usurps the powers of the legislative and judicial branches of the government.

Section 3375 of Title 15 as it currently reads, and has read for over 20 years, allows a lawyer to “designate representatives” to conduct legal visits on his or her behalf. The rule permits those representatives to be (1) a licensed investigator (2) a certified law student (3) a certified paralegal (4) a full-time employee, and (5) a full-time employee of an investigator. In addition, as a matter of practice CDC has for decades allowed attorneys to designate, for purposes of conducting legal visits, those who work for them less than full-time, non-certified law students, and others, including community volunteers. The CDC also by practice permits translators, sign language interpreters, and mental health clinicians to accompany attorneys or their designated representatives during legal visits. Law offices and non-profit legal organizations that represent prisoners on civil rights claims, death penalty appeals, writs, and other legal matters rely heavily on such full-time (or part-time) employees to conduct legal visits on behalf of attorneys. To do otherwise is cost-prohibitive for such offices and organizations due to their small budgets and the virtually non-existent government funding available for such work. Such practice also has proven reasonable from a corrections perspective, as there are few, if any, documented cases of security breaches resulting from such practice and procedure.

In contrast, the proposed regulations permit an attorney to designate as his or her representative only a licensed investigator or certified paraprofessional that is also employed by the attorney (proposed §3178(c)). No provision is made for non-certified paraprofessionals, un-licensed investigators, or paralegals or investigators who are not employed by, but who are associated or contract with, an attorney. The full-time employee designation is eliminated; attorneys who represent prisoners in civil rights cases, criminal appeals, and direct legal services currently use this category extensively. Law students are permitted to conduct legal visits only if certified and only if personally accompanied by their supervising attorney. No provision is made for interpreters, translators, or clinicians, whether or not accompanied by an attorney on a visit. Also, visitation by part-time employees and community volunteers is not permitted.

These regulations are unreasonably restrictive and serve to usurp the authority of the legislative and judicial branches of the government. The paralegal credential criteria are particularly strict and illogical. Under California Business and Professions Code, the legal requirements to become a paralegal or a legal assistant do NOT require certification. The requirements are: (1) a certificate of completion or a degree from an approved paralegal program or post-secondary institution; OR (2) a baccalaureate degree or an advanced degree in any subject, combined with a minimum of one year law-related experience under the supervision of a qualified attorney; OR (3) a high school diploma/GED, combined with a minimum of three years law-related experience under the supervision of a qualified attorney. Bus. & Prof. Code §6450(c)(1-4) (2002). All paralegals, whether certified or not, can perform client interviews. Bus. & Prof. Code §6450 (2002). Paralegals are highly regulated in the state of California. There is no rationale for why the CDC should be permitted to limit attorney visitation to only certified paralegals. That certification is regularly viewed as superfluous in the legal profession is reflected in the small number of certified paralegals. There are only 544 certified legal assistants in the State of California, of whom 30 have continued on to earn a paralegal certification http://www.nala.org/cert.html (accessed 7/24/02) (National Association of Legal Assistants website). This low number is particularly shocking when compared to the 157,035 prisoners currently incarcerated in California.

The proposed CDC regulations also severely hamstring the use of law students. According to the proposed regulations, a law student may interview a prisoner only if the student is “certified” and if the attorney is present. Such a strict requirement will impede seriously the work of most small non-profit organizations and law clinics in the state, which use non-certified law students who are supervised by attorneys. Furthermore, the proposed rules go beyond what is required by the California State Bar in regard to certified law students. The roles and responsibilities of certified law students are governed and regulated by the California Judiciary and the California State Bar. According to the California Bar Association’s Rules Governing the Practical Training of Law Students, a Certified Student may negotiate for and on behalf of the client and/or give legal advice to the client (§5.1). Although the Certified Student must perform these activities under the general supervision of the Supervising Attorney, there is no requirement that says the attorney be in the immediate presence of the student. Cal. Rules of Court, Div IV R 983.2(d) (2002). The CDC’s requirement that certified law students be accompanied by their supervising attorney during legal visits runs counter to the direction of state court rulings and the California State Bar.

Finally, the proposed rules unreasonably limit attorney’s ability to designate employees, volunteers, and non-licensed or non-employee investigators as their representatives. The California State Bar allows for attorneys to engage the services, regardless of whether any compensation is paid, of non-lawyers specifically to do legal work of a preparatory nature and to communicate with clients and third parties. See Cal. Rules Prof Conduct, R 1-311 (1995). Clearly, lawyers are allowed to utilize non-lawyers as their representatives to conduct investigatory interviews under these regulations. CDC regulations should comply with California State Bar rules allowing non-lawyer employees, volunteers, and non-licensed or non-employee investigators to act as representatives of lawyers.

The CDC’s proposed regulations irrationally and severely limit who can act as an attorney’s representative. These limitations will stifle the communication between a prisoner and his or her attorney and will significantly hamper an attorney’s ability to represent prisoners, as attorneys will not be able to utilize volunteers, non-certified law students and non-certified paraprofessionals as legal representatives. Such a deterrence to legal counsel has not been tolerated by the United States Supreme Court in prior litigation against the California Department of Corrections. In Procunier v. Martinez, “The court reasoned that the ban against the use of law students or other paraprofessionals for attorney-client interviews would deter some attorneys from representing prisoners who could not afford to pay their traveling time ... allowing law students and paraprofessionals to interview prisoners might well reduce the cost of legal representation for prisoners.” 416 U.S. 396, 419 (1974) (enjoining the CDC from imposing a rule which restricts access to prisoners to members of the Bar and licensed private investigators). We demand that §3375 of Title 15 be rewritten to permit a lawyer to designate anyone whom the attorney declares is sufficiently trained and supervised to act as his or her agent for purposes of having a confidential legal visit with a prisoner. Failure to do so unconstitutionally curtails prisoner legal access and is in violation of current California law and regulations.

Violations of Attorney-Client Confidentiality

Several of the proposed amendments illegally infringe on attorney-client confidentiality in a number of concrete ways:

1. The proposed regulations allow a warden to “initiate an investigation of the facts and circumstances” and/or require proof that a lawyer or representative and a prisoner are involved in active litigation or “have a legitimate reason for contact” whenever prison officials believe the lawyer is “abusing the privilege of private consultation” or “fostering inmate misconduct” (proposed §3178(j)). These standards are vague and unworkable and susceptible to abuse by prison officials. Additionally, an investigation into the circumstances surrounding a legal visit would necessarily result in an investigation into the content of an attorney-client discussion. Such an investigation would clearly infringe on attorney-client confidentiality and is blatantly unconstitutional.
2. The proposed rule eliminates confidentiality for all legal visits except those conducted by an actual attorney; the proposed rule eliminates the prohibition on recording/monitoring conversations between a prisoner and an attorney’s designated representative (proposed §3178(l)). This proposal conflicts with federal law in the Ninth Circuit that requires that prisoners be afforded confidential access to an attorney’s investigator. See, e.g. U.S. v. Janis, 820 F. Supp. 512 (S.D. Cal. 1992). According to well-established case law that clashes with the Department’s proposal, an agent who acts on behalf of the attorney, such as a legal investigator, stands in the shoes of the attorney in securing the attorney-client privilege. See, e.g. City & County of S.F. v. Superior Court, 37 Cal.2d 227 (1951) (holding that where a doctor acted as an intermediate agent for communication between plaintiff and his attorneys, the statements made by plaintiff to the doctor were confidential and privileged). California courts similarly have held that a lawyer’s investigator enjoys the same right of confidentiality as the client’s attorney. According to People v. Meredith 29 Cal. 3d 682 (1981), “Judicial decisions have recognized that the implementation of these important policies may require that the privilege extend not only to the initial communication between client and attorney but also to any information which the attorney or his investigator may subsequently acquire as a direct result of that communication.” The CDC’s exclusion of an attorney’s representatives from the privilege of a confidential attorney-client meeting is contrary to law and public policy.
3. The proposed rule expands prison officials’ power to read legal documents brought in to a visit by permitting such reading if the prisoner consents (proposed §3178(m)(1)). The long-standing rule has been that both the prisoner and the lawyer must consent before a prison official can read a legal document or papers. The voluntariness of consent in prison is difficult to gauge, so consent of the lawyer also must required. The proposed rule is also disturbing because a lawyer visiting multiple prisoners on the same day often brings in documents related to multiple prisoners, and the consent of one may permit prison officials to read documents related to others.
4. The attorney-client privilege is recognized as “the oldest of the privileges for confidential communications known to the common law.” Upjohn Co. v. United States, 449 U.S. 383, 389, 66 L. Ed. 2d 584, 101 S. Ct. 677 (1981). Practicing attorneys recognize the importance of the privilege and the safe harbor that it provides to encourage “full and frank communications between attorneys and their clients and thereby promote broader public interest in the observance of law and administration of justice.” Id. Violations of attorney-client privilege must not be tolerated. We demand the following: that proposed §3178(j) allowing for investigation into attorney-client communications be eliminated; that proposed §3178(l) be amended to ensure no legal visits are monitored or recorded; and that proposed §3178(m)(1) be eliminated in order to discourage corrections staff from attempting to read legal documents, or at the very least that the language be amended to ensure both counsel and client consent to the reading of any documents.

Unreasonable Interference with Legal Visits

The following are several additional proposed amendments that are unworkable and, if enacted, would severely hamper legal access to prisoners:

1. The proposed amendments require a lawyer to request a legal visit in writing (proposed §3178(e)). The proposed rule does not even provide for “fax” requests, despite a long-standing practice of institutions accepting faxed requests for visits.
2. The proposed rule requires a lawyer, when requesting a legal visit, to declare under threat of suspension or exclusion in the future, that the visit is for one of four specified purposes (proposed §3178(e)). A lawyer should not have to declare a purpose for a legal visit, even generally, as such a requirement would compromise lawyer-client confidentiality. Furthermore, the purposes specified in the proposed rule do NOT include visiting a prisoner for purposes of determining whether he or she is a witness relevant to a particular matter, providing legal advice and counsel unrelated to any intent to represent him or her in a legal proceeding, investigating potential civil rights violations, or assisting with a legal matter such as an advanced health care directive or power of attorney that is unrelated to a “legal proceeding.” These regulations exclude significant legitimate forms of legal assistance and curtail prisoners’ access to the courts.
3. The proposed rule requires that a legal visit be requested at least 48 hours in advance, with five days stated as the preferable time frame (proposed §3178(g)). The current rule allows legal visits to be requested with a minimum 24-hour notice. Lengthening the notice any further will seriously damage prisoners’ rights to representation in legal matters where time is of the essence, such as compassionate release cases or recall and resentencing pursuant to California Penal Code §1170(d), where even one day’s delay could render representation moot.
4. The proposed rule permits either the warden or designee to discipline attorneys by imposing restrictions on a lawyer’s confidential visits (proposed §3178(r)). Because of the importance of legal visiting, and the potential for abuse of this provision, the Director alone should be required to approve any decision restricting an attorney’s legal visiting.
5. The movement of the provisions for certified law students from proposed §3178(c)(2) to §3178(d) out of the section defining attorney representatives creates a distinction between certified law students and attorney representatives. This movement is substantive in nature as it then opts students out of the rights and responsibilities afforded attorney representatives as defined in proposed §3178(c)(3). This change results in prisoners interviewed by law students losing many rights, such as the right not to be monitored, and is therefore unacceptable. Law students should remain classified as attorney representatives in order to ensure them the rights to which they are entitled under the regulations.

These amendments to the proposed regulations are ill-advised and only serve to severely limit prisoners’ access to legal services and the guarantee of confidentiality. If enacted, they would result in constitutional violations.

Violation of Constitutional Rights

The proposed regulations violate numerous rights guaranteed by the United States Constitution. By limiting attorney representatives so severely, attacking attorneys’ ability to communicate with their clients through breaches of confidentiality, and posing untenable rules, the proposed attorney visiting regulations serve to impede prisoners’ access to attorney representation in violation of their 14th Amendment right to due process and 6th Amendment right to representation under the United States Constitution. The mirror image of the prisoner’s 6th Amendment right to effective counsel is the attorney’s right to practice her profession without undue governmental interference. The vindication of one is consequently dependent upon the vindication of the other. These regulations create undue burdens on an attorney’s ability to represent prisoners in violation of attorneys’ 6th Amendment rights. Moreover, these regulations further violate attorneys’ 14th Amendment guarantee of the right to engage in any of the common occupations or professions of life. Such a right is both a “liberty” and “property” right protected from state deprivation or undue interference.

The proposed regulations also have a disparate impact on the access of people of color and women to legal assistance, both being protected classes under the 14th Amendment. The amended regulations disproportionately impact African Americans and Latinos who are disproportionately represented in prisons. Additionally, as there are fewer women’s prisons, women tend to be more geographically isolated from legal counsel when imprisoned. There are therefore even fewer attorneys providing services to women prisoners than to men. These regulations will further aggravate this disparate representation by impeding legal assistance of prisoners. Thus, the proposed regulations have a disparate impact on women and people of color in violation of their right to equal protection under the 14th Amendment.

The proposed regulations also offend the 1st Amendment rights of non-profit law offices that represent prisoners. The Supreme Court has held that when a non-profit corporation with mixed purposes such as advocacy and litigation engages in work on behalf of disenfranchised persons, their activities are protected by the 1st Amendment, and any statute, regulation or practice by the state which interferes with their activities to further their objectives must be subject to strict scrutiny under the 1st Amendment. The Supreme Court has found that “collective activity undertaken to obtain meaningful access to the courts is a fundamental right within the protection of the 1st Amendment.” In re Edna Primus, 436 U.S. 412 (1978). Thus, by curtailing the ability of non-profit law offices to represent prisoners, the offices’ 1st Amendment rights are infringed upon.

Absent a compelling state interest, the State is barred from infringing on organizations’ 1st Amendment rights, and prisoners’ and attorneys’ 14th and 6th Amendment rights. To date, the CDC has offered no rationale for their proposed amendments to legal visitation. Therefore, the proposed regulations are both unacceptable and illegal.

Violation of Administrative Law

Rather than present a compelling state interest for the proposed regulations governing legal visits, the CDC’s failure to adhere to basic administrative law requirements in its attempt to promulgate these regulations evidences bad faith.

Section 11346.3 of the California Government Code requires notice of any regulatory action to include a statement of reasons for each adoption, amendment, or repeal of a regulation. The CDC has failed to publish a statement addressing the reason for any of its most recent amendments to the attorney visiting regulations. '

Moreover, §11346.2(b)(3)(B) requires when there are impacts on small business, government agencies must provide a description of any reasonable alternative the agency has identified that would lessen any adverse impact on small business. All of our offices/agencies qualify as small businesses as defined by California Corporation Code 5060 and California Government Code 1437. All of our offices will be financially compromised by these regulations as we cannot afford to hire only staff attorneys, licensed investigators, certified paralegals, or certified law students to conduct visits. We cannot afford to hire the number of staff attorneys and certified paralegals we would require to continue our legal work and adequately represent our existing clients. Moreover, small law offices and non-profits rarely employ certified law students. Students cannot become certified until they are enrolled in their second year of school. Because non-profits and small law offices regularly do not pay their interns, we cannot financially compete with large firms for students after their first year in school when most firms offer students large salaries. Instead we typically employ students who have completed their first year of law school. The vast majority of staff of many of our organizations will be eliminated from visitation under the proposed regulations. We will suffer undue hardship as a result of the proposed regulations and we are entitled to special protection as small businesses. Again, we demand that these proposed regulations not be adopted.

The CDC is refusing to hold a public hearing allowing us to address the newly proposed regulations. The only hearing on the proposed regulations took place in the Spring 2002 prior to the addition of current changes adversely affecting legal visitation. Pursuant to California Government Code §11346.8(a), staff of our offices filed requests for a hearing with your office prior to 15 days in advance of the close of public comment. Once a hearing is requested, the CDC must provide notice of the time, date, and place of a hearing. The scheduling of this hearing is not discretionary. In California Assn. of Nursing Homes, Etc. v. Williams, 4 Cal.App.3d 800, 821 (1970), the court held that although agencies have discretion in fashioning procedures, this discretion cannot be used to disregard demands for a public hearing.

The CDC failed to provide proper notice of the proposed changes. California Government Code §11346.4 requires that a government agency give notice of a proposed action 45 days prior to the hearing and close of the public comment period. Such notice was not provided concerning the proposed regulations limiting attorney visitation. We demand, at minimum, an extension of the public comment period.

The CDC refused comment on many substantive changes to the regulations in direct violation of California Government Code §11346.8(c). The CDC is refusing to hear comments on sections of the proposed regulations that are not both in bold typeface and either double underlined or double crossed-through. Many substantive proposed amendments to the regulations that we have commented on in the preceding sections of this letter were not printed in bold typeface. These proposed amendments include the elimination of the full-time employee attorney representative designation, the elimination of the ban on tape recording attorney representatives, and the movement of certified students from the list of attorney representatives (see proposed §§3178(c)(4), 3178(l)), and former proposed §3178(d)). Other sections where “attorney representative” was removed create substantive changes to the text yet are not listed in bold typeface include proposed §§3178(b),(g),(l),(m),(o),(p).

Given the above-articulated problems with the proposed changes to legal visiting regulations, we demand that all proposed language affecting §3178 of Title 15 of the California Code of Regulations be discarded, and that public hearings be held with the goal of broadening prisoners’ access to legal assistance.

Sincerely,

Justice Now
Legal Services for Prisoners with Children
California Prison Focus
California Coalition for Women Prisoners
Catherine Campbell