What is the "Attorney-Client Privilege" and are jails exempt?

Posted on September 19, 2008 by Dax Garvin

I've often wondered whether conversations that I have with clients are being recorded... even if there are not signs warning against it.  While I want to believe that they are NOT, as I think that would be a clear breach of confidentiality between clients & attorney's, it would not surprise me.  One of my favorite bloggers, Grits for Breakfast wrote on this topic in this article.  And, Grits even quotes a nearby personality for central Texas, District Attorney for Williamson County, John Bradley, who said,

... jailed inmates have no expectation of privacy.

I agree with that statement for its general tenet, but definitely not in the perspective of when an attorney is talking with his or her client.  Now, one could argue that if an attorney knows there is a chance a conversation is being recorded that he or she should control the conversation to compensate for that, but under some circumstances the information is needed and should be available based on the centuries old principle of attorney-client communication as discussed at length by the National Association of Criminal Defense Lawyers, here.

What I have done to avoid the risk is to speak with client's in person and in the rare instance where I am on the telephone with them, the first thing I say after identifying myself is that I want them to be very cautious in what is said just in case someone is listening in.

Maybe what we all should do as a defense bar is to begin with open records requests to the jails of our respective counties to obtain their official "policies" on such matters... things like their "General Orders" may be available.  The unfortunate side to all of this is that we can almost rest assured that the written policies will not contain language that this occurs....

Thanks to Robert Guest another Texas attorney blogger for bringing this to our attention.

 

 

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Jailed after a Bond is Posted.... for 11 hours!?!

Posted on August 21, 2008 by Dax Garvin

So one of my clients called me a few days ago, and he was very angry!  He wanted to know what he could do about his weekend in jail.  After consulting with him about the case and explaining to him what his rights and options were on the original charge, I was amazed to learn that he remained in custody, locked-up with everyone else for approximately 11 hours AFTER HIS BOND WAS POSTED AND ACCEPTED!  

I would have had a more difficult time believing this had I not been the one who ensured the bond was posted.  I even made the initial payment, because this client is a close personal friend of mine.

So, I started digging through Texas law, both statutory and case law, to determine if there was anything that would provide guidance on how long the Sheriff could keep someone in jail AFTER a bond was posted.  I was surprised to learn that there is not.  In fact, I have still not found anything but am continuing to research this issue.  So, if you know the answer to this question or have similar stories, I would love to hear from you.

If there is not a limit, this is really something that the legislature should consider.  Whether it rises to the level of "cruel and unusual punishment" as contemplated by the US Constitution, I have not decided that as of now, but I am betting that the media would be interested to know more about this circumstance.

Oh ya, one other point about this matter... the person kept in jail was there for a first offense Driving While Intoxicated (DWI) charge... his bond, $1000.00.  So, as you can imagine, this is not a major case that should warrant an additional 11 hours in jail after your bond is posted.

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