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Beware: The walls and halls have ears

Sep 18, 2012 Beware: The walls and halls have ears

The courthouses where I practice cost in the millions of dollars to build, with many probably costing much more than that. Countless are the courthouses lacking sufficient conference room space for me to speak privately with clients and witnesses in the thick of negotiations and during trial breaks. Those courthouses include Prince William, Loudoun, Alexandria (federal and state level), Prince George’s (Maryland), the D.C. Superior Court, and the list goes on.

Even with courthouses that have conference rooms, their walls and doors are not airtight in keeping out sound. Many such rooms have no locks, and I even have experienced a prosecutor who had the audacity (or else lack of forethought, at the very least) to barge into the courthouse conference room where my client and I were conferring, telling me he "needed" to hear my response soon to his settlement offer.

Consequently, I tell my clients and witnesses that the courthouse walls and halls have ears, making it all the more important to discuss as much about the case as possible before the court date, which approach is also important for being prepared.

Nevertheless, courthouse conferences remain essential with clients on such matters as new settlement offers, new evidence provided by the prosecutor or prosecution witnesses, and new ideas and questions from me and my clients. When conference rooms are unavailable and time permits, I speak with clients outside (when the weather is nice, but outside is not safe from the media in high-profile cases, unless they are not monitoring the backdoor), in secluded areas of hallways on floors different from our courtroom, and even underneath stairwells.

Police and prosecutors swarm courthouses. I warn my clients that particularly in such courthouses as the D.C. Superior Court, prosecutors sometimes are sitting in the audience with everyone else, and not necessarily at the prosecutor’s table (particularly seeing that prosecutors from both the U.S. Attorney’s Office and D.C. Attorney General’s Office are not going to be sharing a counsel table together). Police in plainclothes may also be sitting right behind us.

Even a police officer not involved with my client’s case may report what s/he overhears me and my client saying to his or her fellow officers or to prosecutors.

Clearly, new courthouses must have sufficient soundproof conference room space for lawyers and their clients and witnesses to talk. And those conference rooms must remain unlocked when empty (and be lockable when occupied), as it is impractical for lawyers to hunt down courthouse personnel to unlock them. Funds must be arranged to outfit existing courthouses with the same types of conference rooms.

It is not uncommon for opposing witnesses (even some police, who must be required to refrain from doing so) to try to observe and listen in on defense conversations. Then, in the Prince George’s County, Maryland, courthouse in Upper Marlboro, cellphone reception is so bad in most of the courthouse that callers need to migrate towards the windows at the end of the hallways to get a decent phone signal. Consequently, police will innocently stand within feet of me while I am on the phone contacting witnesses on their arrival time and on other essential matters. Caveat emptor.

i also tell my clients to beware what they say in police stations, where we sometimes need to go to review evidence, to receive a summons, and to be processed on an open arrest warrant.

Garbage cans also have ears, as people rarely have any Constitutionally-protected interest in items they throw into the garbage, with some exceptions for one’s own garbage cans stored inside one’s home or business, and with outside garbage cans in a fenced-in area with a no-trespassing sign. Take a page from Oliver North and Fawn Hall, and shred, shred, shred before tossing anything into the wastebasket or recycle bin. Be on guard that your use of any photocopier not your own is at risk, because they can store images of what you copy.

Speaking of garbage cans, one day a police officer in my felony case saw me crumpling up some notepad paper, and amicably offered to dispose of it for me. "Nice try," I responded.

Be mindful of your office space. Before signing a lease, find out how soundproof are the walls between suites. Start (but do not finish) by examining what is above the office suite’s ceiling tiles. If it is empty space, that is one of the places through which sound can travel to the adjacent suite, even if there is a wall separating the suites right up to the ceiling. In older buildings, be careful about sound traveling through radiators. If the walls are too thin, consider the feasibility and cost of doing a build-out to include walls that muffle sound better (which also is nice for not having to hear your adjacent suite occupants, including if they like to play polka music). It is not farfetched to get the advice of someone who capably has assured that government offices in commercial office buildings are sufficiently soundproofed.

Unfortunately, visits to inmates are fraught with lack of confidentiality. The door that separates the visiting lawyer from the hallway is often not soundproof. Contact visits provide for better confidentiality, because people tend to speak louder when speaking by a phone or through air holes when speaking during a non-contact visit. Unfortunately, too many jails by default require Plexiglas to separate lawyers from their clients, which is of little help for developing the attorney-client privilege. I request contact visits and repeatedly contact the power-that-be in advance of a visit to obtain a contact visit.

With passwords, change your computer, phone and other passwords frequently. It is an essential pain in the butt.

Even after i take all the foregoing precautions, my clients are many who cannot wait the ten seconds to get into a private conference room with me before they start blabbing away (not even whispering) in crowded elevators and hallways about their fears and confidential information about their cases. If only telling them that "loose lips sink ships" would do the trick to make them wait until we are in a more secure area to talk.

Keeping in mind that the walls and halls have ears — and sufficiently addressing that reality — is far from paranoia, but good sense for all lawyers to follow with their clients. 

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