Occasionally, prisons give appointed counsel the run-around on obtaining an attorney-client confidential telephone call. The bottom-line is that the prison does not have the right to demand a court order authorizing these calls. Although the Sixth Amendment does not give an inmate an unfettered right to contact with counsel, prison restrictions should be justified by a valid penological purpose. (Mann v. Reynolds (10th Cir. 1995) 46 F.3d 1055.)
Both the Third and the Fifth District Court of Appeal prefer that the issue of obtaining an unmonitored prison phone call be handled informally. Here are some suggested steps to dealing with this problem.
First, the California Dept. of Corrections, Dept. of Regulations and Policies, has informed CCAP that there has been no policy or rule change regarding obtaining a legal phone call to a client. CDC expects appointed counsel to make their request in writing pursuant to the provisions of Title 15 of the California Code of Regulations, section 3282, which states in part:
"(a)(2) A 'confidential call' means a telephone call between an inmate and his/her attorney which both parties intend to be private… (g)(1)Confidential calls may be approved on a case-by-case basis by the institution head or designee only upon written request from an inmate's attorney on the attorney's office letterhead stationery. The date, time, duration, and place where the inmate will make or receive the call, and manner of the call are within the discretion of the institution head, except as restricted herein… (2) It is within the discretion of the institution head, or his/her designee, to approve or deny a confidential call. As long as the attorney/client communication privilege is not violated, a confidential call may be denied where the institution head, or his/her designee, determines that normal legal mail or attorney visits were appropriate means of communication and were not reasonably utilized by the inmate or attorney. Where demand for confidential calls seriously burdens institutional operations, the institution head, or his/her designee, shall prioritize confidential calls." (15 CCR §3282.)
CDCR form 106-A was created to correspond with the approval process described in 15 CCR 3282, as revised in procedures manual NCDOM #08-04, Chapter 5, Article 21 (Inmate use of telephones), effective February 29, 2008.
Note the bold italics near the bottom for the form suggesting that a letter from the attorney, on letterhead, explain the reason the call is needed, should accompany this form.
Experience has taught us that it is also not unusual for the prison to request a copy of the attorney's appointment order and State bar card, in addition to the written request. Be prepared to explain in general terms why normal written legal communication is not effective – for example, "I have a due date with the court and I need to discuss an issue with my client before raising it on appeal; legal mail back and forth will take too long."
Read the accompanying Regs (PDF), especially 15 CCR §3282(g)(1)-(2). If you run into any difficulties with scheduling a timely confidential phone call at the prison, contact the prison litigation coordinator.
Often the call will be scheduled for a certain time of day and then initiated from the prison for the selected date and time. After waiting a reasonable period of time, if counsel does not receive the scheduled call, another call to the prison administrator is appropriate.
On the other hand, after appropriately contacting the prison litigation coordinator in writing, and if discussing your request by telephone with that person still does not wrangle a decision in your favor, counsel should contact the assigned CCAP case buddy to discuss the matter further. We'll advise you on what informal steps may be taken next. Usually, at this point CCAP administration will intervene with the prison contact to see if we can reasonably work out the problem short of involving the courts. Then, if all else fails, CCAP will contact the court to initiate informal assistance from the clerk's office.
Recently, some state prison inmates have been able to patch an unmonitored call through to counsel via a third party's cell phone or a contraband cell phone. Such calls are a violation CDCR regulations and are considered an abuse of legal communication privileges between the prison inmate and the attorney. Unless you hear the electronic CDCR voice announcement that "this is a telephone call from a California State prison inmate," or unless it is a confidential call that you initiated through appropriate prison channels, do not accept the call. Firmly tell the parties that you cannot accept the call because you will risk losing your ability to communicate with him/her and hang up.