Attorney-Client Privilege Key to Effective Representation

Our criminal justice system is dependent on the effective representation of defendants by their counsel and cannot function without a robust attorney-client privilege.  To effectively represent a criminal defendant, an attorney must secure a bond of trust strong enough to encourage the client to engage in truthful discussions about the client’s role in the charged offenses. That frank discussion may include the client’s confession to the criminal acts alleged by the state.

In a capital case, a defendant’s willingness to trust his counsel enough to divulge such information may literally be a matter of life and death.

In State of Arizona v. Clements, Mr. Kessler represents Christopher Clements, who stands charged with multiple homicides in the Tucson area and faces the death penalty if convicted. While incarcerated in the Maricopa County jail awaiting trial on an unrelated burglary charge, Clements’ telephone calls with a former attorney were recorded by jail authorities. The prosecutors in the homicide cases sought permission from the trial judge to allow a Special Master to listen to those calls to determine if the calls were in fact confidential attorney-client conversations. 

The law prohibits the Sheriff from recording or listening to inmates’ calls with their counsel. The jail justified recording Clements’ 29 legal calls in this case because Clements called his former attorney at his home and on his cell phone, not just the attorney’s office number. When Mr. Kessler sought to prevent the Sheriff and the prosecutor from listening to the wrongfully recorded calls, the trial judge ruled that the recorded calls between Clements and his former attorney were not privileged because the former attorney was not Clements’ attorney “of record” when the calls were made, and the calls were made to telephone numbers that differed from the office telephone number listed by the Arizona State Bar for that attorney.

Mr. Kessler asked the Arizona Supreme Court to review the trial judge’s ruling.  In Clements v. Bernini in & for County of Pima, 249 Ariz. 434, 471 P.3d 645 (2020), the Supreme Court reversed the trial judge’s ruling and agreed with Clements that the Sheriff violated his right to privileged communications with counsel.

The Supreme Court said: “A jail’s policy to designate specific phone numbers as non-monitored attorney lines should, within reason, accommodate the reality that many attorneys communicate with clients using a cell phone or second office line. Knowingly monitoring attorney-client communications to prevent the privilege from attaching to those conversations simply because the phone number used by a defendant to contact his or her attorney is not listed with the State Bar appears to constitute an unreasonable burden on a defendant’s ability to confer with counsel. If an inmate has no practical way to communicate with counsel without interception, he can hardly be said to have waived the privilege by choice or inadvertence.”

The Supreme Court also extended the attorney-client privilege to any attorney Clements may have called for legal advice, including his former attorney, again overruling the trial court judge.

Clements’ case is still pending trial, but the prosecutors cannot listen to those 29 recorded calls. The prosecutor has since returned the recordings to Mr. Kessler. Clements can be confident that his calls with his lawyers will remain privileged, which helps to preserve a fair trial in the months to come.

Defense attorneys are charged with ensuring that the client receives a fair trial. Mr. Kessler is committed to this responsibility and continues to pursue justice and fairness for his clients as envisioned by this nation’s founding fathers.