Seventh Circuit Appeals Court panel grants accommodation for letters between prisoner and lawyer 

By Joe Forward, Legal Writer, State Bar of Wisconsin

Sept. 21, 2010 – Under federal law, a state prison guard or employee cannot open lawyer-prisoner communications outside the presence of the prisoner, a three-judge panel for the U.S. Court of Appeals for the Seventh Circuit recently held. 

In a written opinion by Judge Richard Posner, the panel explained in Guajardo-Palma v. Martinson, No. 10-1726 (Sept. 20, 2010) that reading lawyer-prisoner correspondence would violate the prisoner’s constitutional right to court access because meaningful access to the courts requires private communication between lawyer and client.

The panel refused to couch the issue in terms of a right to free speech, concluding that “the purpose of confidential communication with one’s lawyer is to win a case rather than enrich the marketplace of ideas.”

Cesar Guajardo-Palma, a Wisconsin state prisoner, filed suit in the U.S. District Court for the Western District of Wisconsin based on the claim that prison employees violated his constitutional rights by opening and reading “legal mail” addressed to him.

But district court dismissed the case for failure to state a claim. The Seventh Circuit Court of Appeals upheld the dismissal because the legal mail that prison guards opened and read was not from Guajardo-Palma’s lawyer. The letters originated from certain officials and organizations, like the Wisconsin Department of Corrections.

And while the appeals panel acknowledged that opening letters from certain officials and organizations may violate Wisconsin law, it upheld the dismissal because “a violation of state law is not a ground for a federal civil rights suit.”

Nevertheless, the court addressed the “recurring issue” concerning “legal mail” and the constitutional rights of inmates in securing privacy of a letters’ contents.

Accommodation granted for communications with lawyer 

The panel concluded that an “accommodation is needed between the prisoner’s interest in the confidentiality of communications with his lawyer” and the “prison’s interest in security.” This accommodation could extend to “some communications with the court or agency in which [a defendant’s] case is pending, whether or not he is represented by a lawyer.”

The panel explained that a prison authority is allowed to open all mail to check for contraband, but letters that are tagged as originating from an attorney, and vice versa, must be opened in the presence of an inmate to ensure that prison officials won’t read the contents of the letter.

Addressing issues of administration, the panel thought it appropriate that the state require communications from an inmate’s lawyer “be specially marked as originating from an attorney, with his name and address being given, if they are to receive special treatment.”

This approach follows Wolff v. McDonnell, 418 U.S. 539 (1974), the panel explained, and while the approach may not be ideal, “it is the best that has been suggested, and that’s good enough,” Judge Posner wrote.

Proof of practice and harmless error 

The panel explained that a prison authority does not violate a prisoner’s constitutional rights unless the prisoner shows that prison authorities have a “practice of reading” a prisoner’s letters to and from his or her lawyer.

That is, isolated interference will not rise to the level of a constitutional violation because “its effect on prisoners’ access to justice is likely to be nil.”

As with the confidential communications between a lawyer and his criminal defendant, interception of communications concerning civil litigation is subject to “harmless-error analysis,” the panel explained.

But the panel noted that injunctive relief may still be appropriate if a prison regularly opens the contents of attorney-prisoner correspondence outside the presence of the prisoner but the violation is harmless error.

Noting that communications from courts and agencies are not entitled to the same confidentiality as mail from the prisoner’s lawyer, in large part because those documents are usually public, the panel upheld the district court dismissal of the case.

The documents addressed to Guajardo-Palma, some public and some nonpublic, “are not the kind of documents whose perusal by prison officials would give them an edge in litigation,” the panel concluded.

“[A]s long as the prison confines itself to opening letters that either are public or if private still are not of a nature that would give a reader insights into the prisoner’s legal strategy, the practice is harmless and may be justified by the volume of such mail that a litigious pironer can generate,” Judge Posner wrote.