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Legal Mail is Confidential Mail

Mail between an attorney and a state prison inmate/client is given special confidential treatment by the Dept. of Corrections & Rehabilitation, as guaranteed by Penal Code section 2601, subdivision (b), provided conditions are met.

Beware of Potential Hazards / Abuses of Legal Mail

There are some hazards to be aware of, however. Items sent to the inmate/client by an attorney must not cause the inmate to violate CDCR rules. (There are the obvious – obscene matter, etc. – or the not so obvious – matter concerning a lottery or photos.) Counsel should ensure that no metal (including staples and other metal paper fasteners) is included in an inmate’s mail. If a document in the legal mail is stapled or otherwise fastened with metal, the offending metal will be removed in front of the inmate.

Attorney mail should not be used for general correspondence unrelated to the legal representation. (A gentle reminder to your client can dissuade some of this, or a referral to a pen-pal program.) And, according to the Regs, an inmate is not permitted to send the attorney correspondence to be forwarded to another person. (If the inmate does send the attorney something with a request to forward it to another, counsel should advise the client that it will not be forwarded, and ask the client whether it should be destroyed or returned to him. The attorney should also determine whether it would be proper to return it by confidential mail, or only by nonconfidential mail, and inform the inmate before either disposition is elected.) See California Code of Regulations, Title 15, section 3141(b), regarding the use of confidential status as a conduit for nonprivileged communications. Worse yet, you could be subject to State Bar discipline. (See In re Matter of Brown, 10-O-06727 [State Bar Ct., filed Dec. 29, 2011 – suspension recommended for defense attorney’s actions in removing documents from jail with instructions to convey them to his wife and sister-in-law].)

The bottom line: do not forward anything from your client to someone else! CDCR considers this an abuse of the legal mail privilege.

Can I Send Newspapers, Books, Money, etc.?

There are limitations on how an inmate can receive newspapers, periodicals, and books. They generally must “… come directly from a publisher or book store which does mail order business…,” per Title 15, section 3138(f). In other words, the attorney cannot send a client the latest Harry Potter book or a National Georgraphic magazine to help him/her pass the time.

Inmates may not possess money. Further, inmates may possess only the personal property, materials, supplies, items, commodities and substances received or obtained from authorized sources, as permitted in the institution’s procedures. Even the possession of excessive stamps can become an economic bargaining tool. Sending a client only self-addressed pre-stamped envelopes avoids any problems.

Prohibited Content

In addition, inmates cannot receive obscene publications or writings, or mail containing information concerning where, how, or from whom such matter may be obtained; any matter of a character tending to incite murder, arson, riot, violent racism, or any other form of violence; or any matter concerning gambling or a lottery. (Pen. Code, sec. 2601, subd. (c)(1)(A)-(C).

Controlling Regulations

Sections 3141 through 3145 of Title 15 generally set forth the parties entitled to confidentiality of communications, how the mail is to be marked in order for confidentiality to apply, and how the Department of Corrections will process the mail while observing the need for institutional security.

Incoming Correspondence

Inmate mail is considered confidential if it comes from sources listed in section 3141, subdivision (c)(1)-(8) [(1) elected or (2) appointed officials, (3) persons charged with the inmate’s custody, (4) county agencies regarding child custody proceedings, (5) all judges and courts, (6) an attorney at law listed with a state bar association, (7) certain Dept. of Corrections personnel as listed, and (8) legal service organizations – the CAP projects fall within the latter category.

An attorney’s name must be included in the return address on the envelope, though, or the mail will be considered nonconfidential. Section 3141 also states that “[a] notice or request for confidentiality is not required on the envelope.” But, to avoid mistakes, the safer practice is to conspicuously mark the envelope “Confidential” or “Legal Mail.”

Sending Transcripts: Postal Service vs. Trackable Service?

Transcripts should be returned to the client/inmate via a service such as UPS or other similar service provider which provides both a tracking number and insurance as part of their service. “Tracking number” means you are given a package number and can track when it was delivered to the prison. UPS will not deliver to a Postal Box address; use the street address for delivery, which is listed in our Facilities Phone Directory under “Shipping Address.” The package or box of transcripts must be properly marked with the attorney’s name, return address and “Confidential Legal Mail.” The return address must match the address listed with the State Bar.

Chapter 5, Article 41 of the CDCR Dept. Operations (external link) regs “Inmate Mail” does not say that a box or package cannot be accepted for delivery from an attorney (there are restrictions on boxes from other sources). If a prison refuses a UPS delivery because of their interpretation of the regs, then call the prison litigation coordinator for that institution and ask for assistance. See also, Art. 41, sec. 54010.12.1 “Persons with Whom Inmates May Correspond Confidentially.”

Practice note 1: Tip from an experienced panel attorney: Enclose a receipt listing the number of volumes of CT and RT for the client to sign and date, along with a return self-addressed, stamped envelope. Almost all clients will return the confirmation, and it may answer occasional questions about whether transcripts were sent and/or received.

Practice note 2: Even though it is the client’s copy of the transcripts, attorneys must observe proper confidentiality constraints in sending transcript pages that disclose the address or telephone number of a victim or witness in the case. (Pen. Code, sec. 1054.2.) It is recommended that you pull out and copy the relevant pages to keep in your file, then redact the copied pages where necessary and send the redacted transcript to the client. Examine, for example, the probation officer’s reports, police reports, and trial counsel file notes. Better yet, tab or note these pages as part of your record review process so you can quickly and easily identify them when you are ready to send the record to the client at the conclusion of the case.