Cal. Code Regs. Tit. 15, § 3178 - Attorney Visitations and Consultation
(a)
The provisions of this section apply to any attorney or legal service
organization as identified in section
3141(c)(8)
authorized to practice law in California, another state, or the District of
Columbia.
(b) A private
consultation between an inmate and his or her attorney or attorney
representative is known as an attorney visit. Attorney visits shall be
conducted in a confidential area specified by the institution/facility.
Attorney visiting shall normally be accommodated during the
institution/facility regularly scheduled visiting days and hours. Where regular
visiting is scheduled on both weekdays and weekends, the scheduling preference
will be on weekdays because of the personnel and resources needed for the
greater volume of weekend visits by friends and relatives.
(1) When an institution/facility visiting
schedule only provide(s) for visiting on weekends an attorney visit shall be
scheduled during normal weekday business hours upon written request of the
attorney or attorney representative.
(2) The institution head or the official in
charge of visiting has the discretion to authorize a contact attorney visit for
an inmate on non-contact visiting status.
(3) If an attorney, or attorney
representative, does not desire private accommodations, the attorney or
attorney representative may visit the inmate on any scheduled visiting day and
shall be provided the same accommodations including the schedule, as a regular
visitor.
(c) An attorney
or court may designate other persons to act on their behalf as attorney
representatives.
(1) Attorney representatives
must be one of the following:
(A) A private
investigator licensed by any state and sponsored by the attorney or appointed
by the court.
(B) An investigator
who is employed by a government agency, public agency or public
institution.
(C) A law student
sponsored by the attorney.
(D) A
legal para-professional sponsored by the attorney or appointed by the
court.
(E) An employee of an
attorney, legitimate legal service organization, or licensed private
investigator who is sponsored by the attorney or licensed private
investigator.
(2)
Personnel retained by an attorney or attorney representative, including, but
not limited to certified sign language interpreters, certified language
interpreters and court reporters may accompany the attorney or attorney
representative during the private consultation and are required to provide the
information requested in (c)(3) below. Licensed mental or medical health care
professionals may also serve as attorney representatives and do not have to be
accompanied by the attorney.
(3)
The designation shall be in writing and signed by the attorney and/or judge,
and shall contain the following:
(A) The
designee's name and position of employment or title.
(B) The designee's date of birth, driver's
license and social security number.
(C) Certification, in the form of a license
that the representative is a licensed private investigator retained by the
attorney or appointed by the court; or valid identification that the
investigator is employed by a government agency, public agency, or public
institution; or a letter in the form of a declaration, that the attorney
representative is being sponsored by the attorney and that the attorney accepts
responsibility for all actions taken by the attorney representative.
(D) The name and CDC number of the inmate(s)
to be visited.
(E) The designation
shall be presented by the representative at the time of the visit and shall be
subject to verification by institution/facility staff.
(4) Attorney representatives shall be
afforded the same accommodations and services and are subject to the same rules
and regulations, as an attorney providing all other requirements of this
article are met.
(d) An
attorney who wishes to consult in person with an inmate shall contact the
institution/facility at which the inmate is housed. The request shall be made
by calling or writing (including via facsimile) the staff designated (usually
the litigation coordinator) in the institution/facility operational supplement.
In order to obtain approval/clearance, the attorney shall provide the following
personal and professional information in writing (including via facsimile):
name; mailing address; date of birth, valid driver's license or state-issued
identification card number; proof of current registry and good standing with a
governing bar association; and indication of the jurisdiction(s) licensed to
practice law. Requesting attorneys must also report any prior felony
convictions, explain any prior suspension or exclusion from a correctional
facility and declare one or more of the following:
(1) They are the inmate's attorney either by
appointment by the court or at the inmate's request;
(2) They have been requested by a judge to
interview a named inmate for purposes of possible appointment as counsel by the
same court;
(3) They are requesting
to visit an inmate who may be a witness directly relevant to a legal process,
purpose, or proceeding;
(4) They
are seeking to interview a named inmate, at the request of the inmate, for the
purpose of representation of the inmate in a legal process, for a legal purpose
or in a legal proceeding.
(5) They
have been requested by a third party to consult with the inmate when the inmate
cannot do so because of a medical condition, disability, or other
circumstance.
(e) Any
false statement or deliberate misrepresentation of facts specific to the
information requested in subsection (d) above shall be grounds for denying the
request and/or cause for subsequent suspension or exclusion from all
institutions/facilities administered by the department.
(f) Upon receipt of the information specified
in (d) above, a California Law Enforcement Telecommunications System check of
the attorney through the Department of Justice and verification of the
attorney's credential through the governing state bar will be conducted. Once
the clearance and state bar verification have been obtained and approved, the
attorney shall be contacted to schedule the initial in-person visit with the
specified inmate(s). Attorneys and attorney representatives must report any
change in personal or professional information, arrest history and declarations
made in subsections (c) and (d) above to retain their
approval/clearance.
(g) While five
days notice to schedule an attorney visit is requested an approved attorney or
approved attorney representative shall provide the institution/facility with no
less than two business days notice to schedule a private consultation with an
inmate. In an emergency, appointment requests may be cleared through the
institution head or designee.
(h)
Upon arrival at the institution/facility, the approved attorney shall be
processed into the institution/facility in the same manner and under the same
restrictions as regular visitors. Attorneys shall also be required to present
their state bar card or other similar documentation that they are currently
registered in good standing with a state bar association.
(i) To follow-up on information obtained
during a private consultation with an inmate, attorneys or attorney
representatives may request to visit inmates other than those already formally
represented. Such requests shall be considered subject to reasonable
operational limitations. If the request imposes an unreasonable burden on
staffing or unduly disrupts an institutional function, e.g., interferes with
count or feeding, it will be deemed unreasonable and the request will be
denied.
(j) When there is cause to
believe an attorney or a legal service organization is abusing the privilege of
private consultation with the inmate, the institution head is authorized to:
(1) Require proof that the inmate and
attorney are involved in active litigation or have a legitimate legal reason
for contact.
(2) Initiate an
investigation of the facts and circumstances of the
situation.
(k) An
attorney request for the deposition of an inmate shall be made in writing to
the institution head. The request shall include:
(1) The name and CDC number of the
inmate.
(2) The name and other
identifying information of the court reporter.
(3) The specific date and time requested for
taking the deposition.
(l) Not more than two attorneys or attorney
representatives may visit privately with an inmate or witness at the same time.
Exceptions may be authorized by the official in charge of visiting commensurate
with space and staff availability.
(m) Conversations between an inmate and an
attorney and/or attorney representative shall not be listened to or monitored,
except for that visual observation by staff which is necessary for the safety
and security of the institution/facility.
(n) All items, including legal documents
permitted into the security area, shall be inspected for contraband and/or
unauthorized items or substances. The inmate may retain and take from the
visiting area any legal documents given to him or her by the attorney or
attorney representative, providing the inmate consents to staff examination of
the documents for contraband or unauthorized items or substances.
(1) Staff may open and inspect but shall not
read any part of written or printed materials without the expressed consent of
the attorney/attorney representative and inmate.
(2) Any and all items including written and
printed material that an inmate and an attorney wish to exchange during the
visit must be presented to the official in charge of visiting for inspection
before it is brought into the visiting area. The purpose of this inspection is
to ensure the contents pose no threat to the security or safety of the
institution/facility, including the introduction of unauthorized drugs,
controlled substances, and contraband as defined in section
3006.
(3) If the inmate does not consent to an
inspection of the contents of a document given to the inmate by the
attorney/attorney representative, it shall be returned to the attorney/attorney
representative.
(o) After
proper inspection, written and printed material may be exchanged. The attorney
or attorney representative may retain and take from the visiting area and from
the institution/facility any legal written or printed documents given to them
by the inmate and not otherwise prohibited by law or these
regulations.
(p) An attorney or
attorney representative may be permitted, with the inmate's consent, to audio
record the inmate's interview.
(1) The
institution/facility shall make audio recording equipment available for such
use. The interviewer may use personal recording equipment providing the
equipment can be thoroughly inspected by staff before entry into the
institution/facility.
(2) The
attorney or attorney representative must provide a factory sealed
audiotape/compact disc(s).
(q) The institution head or designee may
authorize video recording of inmate interviews, with the inmate's consent.
(1) Video recording equipment provided by the
attorney shall be thoroughly inspected by staff before entry into the
institution/facility and searched for contraband.
(2) If the attorney's or attorney
representative's video equipment cannot be thoroughly searched without an undue
risk of damage, the equipment shall be permitted only if the attorney or
attorney representative agrees to pay for staff to escort and control the
equipment while inside the institution/facility. The pay for such staff escorts
shall be at the state established hourly wage, including rates for overtime
when necessary.
(3) The attorney or
attorney representative must provide factory sealed
videotape(s).
(r)
Attorneys shall not be permitted to attend or participate in any conference or
committee meeting of staff and the inmate concerned, except as may be
authorized in these regulations.
(s) Administrative action may be taken by the
institution/facility head or designee to restrict, where cause exists, the
confidential privileges, including confidential visiting, mail and/or telephone
privileges, and/or normal visiting privileges afforded an attorney or attorney
representative based upon the schedule contained in this section:
(1) A written warning notifying the attorney
or attorney representative that the offender's confidential legal privileges
are subject to modification/suspension and that the offender will be subject to
exclusion for a minimum of six months. Written warnings are appropriate for
minor infraction or violations of the institution/facility regulations, i.e.,
violations that cannot be prosecuted as either a misdemeanor or
felony.
(2) Modification,
suspension, or exclusion of visiting privileges for a period of at least six
months shall occur in the event that the written warning above fails to deter
or correct the offending behavior.
(3) Committing an act that jeopardizes the
life of a person, violates the security of the facility, constitutes a
misdemeanor or a felony, or is a reoccurrence of previous violations shall
result in a one-year to lifetime exclusion depending on the severity of the
offense in question. Exclusions shall be made in accordance with section
3176.3 and the appeal process in
section 3179.
(t) The director or designee shall be
notified in writing within 48 hours when administrative action is taken to
restrict visiting privileges of an attorney or attorney
representative.
Notes
2. Repealer and new section filed 8-18-78; effective thirtieth day thereafter (Register 78, No. 33).
3. Amendment filed 8-23-82; effective thirtieth day thereafter (Register 82, No. 28).
4. Change without regulatory effect amending subsection (a) filed 1-12-98 pursuant to section 100, title 1, California Code of Regulations (Register 98, No. 3).
5. Repealer and new section filed 2-18-2003; operative 3-20-2003 (Register 2003, No. 8).
Note: Authority cited: Section 5058, Penal Code. Reference: Sections 2601, 4570.5 and 5054, Penal Code; and Procunier v. Martinez, 94 S. Ct. 1800 (1974).
2. Repealer and new section filed 8-18-78; effective thirtieth day thereafter (Register 78, No. 33).
3. Amendment filed 8-23-82; effective thirtieth day thereafter (Register 82, No. 28).
4. Change without regulatory effect amending subsection (a) filed 1-12-98 pursuant to section 100, title 1, California Code of Regulations (Register 98, No. 3).
5. Repealer and new section filed 2-18-2003; operative 3-20-2003 (Register 2003, No. 8).
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