Lawyer's Visits

Derivation of the Right to a Lawyer's Visit

The right to consult with one's lawyer is derived from two sources: the doctrine of attorney-client privilege and the provisions of several constitutional amendments. The attorney-client privilege—the law's recognition that confidential attorney-client communications are necessary to promote full and frank disclosure and to foster effective advocacy—is the oldest recognized privilege in Anglo American common law. Because unrestricted communication between client and attorney is so fundamental to legal institutions, the attorney-client privilege extends to all legal correspondence, telephone calls, and visits—even in correctional settings. Until the September 11 terrorist attacks, all U.S. prisoners enjoyed the right to unencumbered communication with their attorneys; subsequent antiterrorism provisions, however, have authorized the monitoring of attorney-client communication in limited cases.

The right to meet with one's lawyer is also assured by the First, Fourth, Fifth, and Sixth Amendments of the U.S. Constitution. The First Amendment guarantees that the federal government “shall make no law … abridging the freedom of speech… and to petition the Government for a redress of grievances.” The U.S. Supreme Court held in Pell v. Procunier that prisoners retain those First Amendment rights not inconsistent with their status as inmates or with the legitimate penological objectives of the corrections system. The Court further held in Bounds v. Smith that incarcerated individuals retain a right of access to the courts, inherent in which is the ability to seek and obtain the effective assistance of counsel. To be effective, lawyers must be able to communicate freely with their clients, by letter, telephone, or visit.

The Fourth Amendment ensures “the right of the people…against unreasonable searches and seizures.” If an individual has an expectation of privacy that society would objectively recognize as reasonable, the government must obtain a warrant from a magistrate to conduct a search or seizure. Although the Supreme Court has concluded that prisoners have no reasonable expectation of privacy from searches in their cells, the Court has suggested that confidential relationships may be protected. In other words, because it could reasonably be expected that attorney-client communications were private, the “seizure” of privileged attorney-client conversations would typically violate the Fourth Amendment.

The Fifth Amendment of the U.S. Constitution guarantees that no person shall be “deprived of life, liberty, or property, without due process of law.” Lower courts have construed this due process guarantee as including the right to have the effective aid of counsel. Because confidential communication lies at the heart of effective counsel, under the Fifth Amendment, lawyers must be free to communicate with their clients by letter, telephone, or visit. Legal communications may be monitored under new antiterrorism provisions (and are therefore no longer confidential under these circumstances), but even those individuals detained under antiterrorism regulations still retain the right to communicate with their attorneys.

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