Can Prison Inspect Prisoner's Confidential Email Communications With His Attorney ?
Although a prisoner has no general right to privacy, there are statutory and administrative limitations on the power of prison personnel to inspect a prisoner's confidential communications with his or her attorney. (See 2601, subd. (b); In re Jordan (1972) 7 Cal.3d 930, 938-939 (Jordan I); In re Jordan (1974) 12 Cal.3d 575, 579 (Jordan II).) In particular section 2601, subdivision (b), which permits inspection of incoming mail to search for contraband, also expressly provides a prisoner with the right to "correspond, confidentially, with any member of the State Bar or hold of public office . . . ."
In Jordan I, an inmate challenged a prison regulation which prohibited confidential correspondence between an inmate and his attorney. Our Supreme Court held that the regulation was inconsistent with the right to confidential correspondence provided by former section 2600, subdivision (2), the predecessor to section 2601, subdivision (b), and was therefore invalid. (Jordan I, supra, 7 Cal.3d at p. 939, fn. 4.)
The court suggested that the prison could insist that letters from attorneys be opened in the presence of prison guards to assure that they do not contain contraband, but that they could not ban all such correspondence. (Id. at pp. 938-939.) The court further suggested that prison officials could assure themselves that correspondence was to or from counsel by checking the purported lawyers' names against a list provided by the State Bar. (Id. at p. 939.)
In Jordan II, the same inmate challenged a regulation which permitted prison officials to read any printed material contained in otherwise confidential attorney communications. The Supreme Court rejected the regulation as potentially intruding on the attorney-client privilege and serving no institutional interest. (Jordan II, supra, 12 Cal.3d. at p. 580.) The court reiterated its earlier determination that there was only a "remote and wholly speculative danger that an attorney, sworn to obey the laws of this state, would assist a prisoner in avoiding legitimate prison regulations or conspire in plots that threaten prison security." (Id. at p. 579.)
Consistent with Jordan I and Jordan II, the state prisons adopted regulations which attempt to protect the confidentiality of attorney-client communications and at the same time safeguard valid institutional security interests. California Code of Regulations Title 15, section 3141 (c)(6), expressly permits inmates to have confidential communications with attorneys.
Section 3143 of the regulations in turn prescribes the procedure for processing incoming confidential mail and states:
"Incoming letters must show the name, title, return address and the office of persons listed in Section 3141 on the outside of the envelope to be processed as confidential correspondence. An attorney's return address must match the address listed with the State Bar. A notice or request for confidentiality is not required on the envelope. Correspondence that is appropriately addressed with a return address that indicates it may be confidential shall be processed and treated as confidential correspondence whether or not it is stamped as such.
"(a) Designated staff shall open the letter in the presence of the addressed inmate at a designated time and place. Staff shall not read any of the enclosed material. Staff shall remove the pages and shake them to ensure the absence of prohibited material.
"(b) Inmates shall sign for all confidential mail at the time of delivery. This shall be accomplished by use of a permanent logbook or use of receipts. If receipts are used, the receipts shall be forwarded to the mailroom for filing. The log book at a minimum must record the date of delivery, the inmates name and departmental identification number, and the senders name and address." (Cal. Code Regs., tit. 15, 3143.)