Lawyers who want to speak with clients locked up at the York County Detention Center are being asked to send letters declaring that they represent the inmates they’re trying to visit.
The jail’s policy is unique, and it’s ruffled the feathers of some members of the local criminal defense bar as well as a Columbia lawmaker who has asked the state’s Supreme Court to investigate the situation.
State Rep. Todd Rutherford, a Democrat and criminal defense lawyer, complained to the high court after he was turned away for not having filed a letter before he tried to meet with a client at the jail last spring.
“I couldn’t go in and see him and so I had to leave. It’s an absurd requirement, and it violates attorney-client privilege,” Rutherford said. “Once I indicate to a jail or prison who I’m going to see, I don’t have to say that I represent the person.”
Local defense lawyer Christopher Wellborn of Rock Hill called the jail’s letter policy “obnoxious,” but, unlike Rutherford, he was unsure about whether it violated the law.
“Is the client being denied the right to counsel? No. It’s just an extra step. It’s a stupid extra step. It’s just slowing the process down,” he said. “There just does not seem to be any rationale that I can see whereby the system is benefitted by this rule.”
He and Rutherford were concerned that the sheriff’s office was using the policy to spend more time interrogating suspects while their lawyers completed the representation letters and faxed the documents to the jail.
Jailhouse informer
Wellborn added that the policy also is troublesome because it forces lawyers to reveal when they’re visiting witnesses that they might call during trial. He worried that the jail would share the information with prosecutors.
“By coming in and meeting with somebody, am I not disclosing who a potential witness is, and why should [prosecutors] be entitled to that?” he said. “The jail is not supposed to be gathering intel for the solicitor’s office.”
The county’s head public defender, Harry Dest, began raising issues about Sheriff Bruce Bryant’s letter policy before Rutherford complained to the Supreme Court in April 2014. Chief Justice Jean Toal responded by having her assistant director of court administration, Bob McCurdy, look into the issue.
While McCurdy was investigating, he said Kristie Jordan, general counsel for the York County Sheriff’s Office, tweaked the controversial policy by allowing lawyers to fill out an attorney visitation request form in the jail’s lobby, rather than sending over a letter.
“My understanding was that she was not asking for a letter of representation,” McCurdy said. He added that he tried to follow up with Dest to discuss the situation, but his calls were not returned. Dest also did not respond to phone messages and an email seeking comment for this article.
McCurdy said he interpreted Dest’s silence to mean that the matter was resolved. He also said that he was not aware of any other jail in the state having a policy that is similar to York’s.
Enforcer of legal ethics
While McCurdy believed that the letter requirement had been lifted, the jail is still asking lawyers to send letters of representation before they can visit clients. That’s Plan A. The attorney visitation request form is Plan B.
“We still prefer a letter of representation,” Jordan said. “It protects that defendant and that attorney so you don’t have someone else coming in and talking to your client.”
Wellborn and Rutherford noted that the Rules of Professional Conduct already prohibit lawyers from paying unsolicited visits to another attorney’s client. Lawyers who run afoul of that rule have to answer to the Supreme Court and its Office of Disciplinary Counsel.
“There’s a whole ethical rule about this,” Wellborn said. “It’s not the York County sheriff’s job to enforce legal ethics. That’s sort of inane.”
Calling the policy kerfuffle a “non-issue,” Jordan dismissed the various concerns that Wellborn and Rutherford raised as being “manufactured red herrings.” She said the policy wasn’t enacted specifically to keep lawyers from making unsolicited contact with inmates, or for any reason other than keeping the jail secure.
“We’ve never ever done anything, that I’m aware of, that has kept a defendant from seeing an attorney that he wishes to see,” she said. “All we’re doing is documenting who’s coming in and out of our facility. I don’t see us changing that.”
Follow Phillip Bantz on Twitter @SCLWBantz