In re ROBERT CHARLES JORDAN, JR., on Habeas Corpus, 12 Cal. 3d 575

Opinion BURKE, J. In this case we consider the scope of the attorney-inmate confidential correspondence privilege set forth in Penal Code

section 2600, subdivision (2). We are asked to determine whether Director’s Rule 2406, under which the Department of Corrections treats all printed enclosures in attorney-inmate mail as nonprivileged material, is consistent with the statutory rights afforded prisoners by

section 2600. We have concluded that Director’s Rule 2406, to the extent that it authorizes prison authorities to read printed enclosures in attorney-inmate correspondence, is inconsistent with

section 2600, subdivision (2), and therefore is invalid. Petitioner is an inmate at California Medical Facility, Vacaville, having been convicted of violating Penal Code sections 207 (kidnaping) and 286 (sodomy). He does not challenge the validity of his convictions but seeks habeas corpus to vindicate rights to which he is allegedly entitled in confinement. (See In re Harrell, 2 Cal.3d 675, 682 [87 Cal.Rptr. 504, 470 P.2d 640].) Specifically petitioner attacks the Department of Corrections policy of reading all “enclosures” in attorney-inmate mail. Petitioner argues that this enclosure exception to the attorney-inmate correspondence privilege violates his rights under Penal. Code

section 2600 as recently interpreted by- this court in In re Jordan, 7 Cal.3d 930 [103 Cal.Rptr. 849, 500 P.2d 873]. In Jordan, supra, we held that

section 2600, subdivision (2), which permits prison authorities to open and inspect attorney-inmate mail to search for contraband, did not allow the reading of privileged mail in search of “verbal contraband.” We noted that the Legislature’s primary objective was preservation of confidentality and that it was necessary to restrict contraband to “physical matter” so as not to emasculate the. section. (7 Cal.3d at p. 936.) In re Jordan, supra, 7 Cal.3d 930, did not directly involve the issue now raised, namely, what type of physical matter in addition to the attorney-inmate letter is to be considered confidential correspondence protected from examination.

The case nevertheless provides guidelines to be followed in construing

section 2600, subdivision (2). We said (at p. 936), “It is clear that the Legislature in authorizing inspections for contraband did not contemplate the censoring of attorney mail because of its content; such an

interpretation would have patently defeated the confidentiality guaranteed by

section 2600. We agree that the Department of Corrections has a legitimate interest in excluding from the prisons weapons, drugs, and other tangible items posing threats to prison security. But to limit the subject matter of inmate-attorney mail and to inspect such mail to ensure that the limitations are adhered to emasculates the confidentiality provision of

section 2600.” (Italics in original.) We also noted that there appears to be only a remote and wholly speculative danger that an attorney, sworn to obey the laws of this state, would assist a prisoner in avoiding legitimate prison regulations (id., p. 937) or conspire in plots that threaten prison security (id., p. 938). Throughout our opinion we expressed a deep concern for maintaining confidentiality and our trust in the integrity of attorneys.

It seems clear that printed enclosures such as Xeroxed cases and law review articles are not the types of tangible items which the Legislature contemplated as posing a serious threat to prison security. In any event the department’s policy regarding enclosures can have only minimal salutary effect given the relative ease of circumventing the rule. Presumably, under the current department policy, the attorney need only transcribe the printed matter in any enclosure onto his legal stationery and it would pass unread.

Likewise, the fact that personal interviews with attorneys are not subject to auditory monitoring emphasizes the futility of reading all enclosures in attorney mail in the hope of frustrating escape plans and avoiding violence. As we said in In re Jordan, supra, 7 Cal.3d 930, 938, “The determined conspirator who can hatch his plots during personal visits will be only slightly hindered, but not deterred, by a rule that hinders plotting by mail.” In construing

section 2600, subdivision (2), we must consider the strong policy favoring the attorney-client privilege.

In In re Jordan, supra, 7 Cal.3d 930, 940-941, we pointed out that . . the protection of confidences and secrets is not a rule of mere professional conduct, but instead involves public policies of paramount importance which are reflected in numerous statutes.” As examination of printed enclosures would not significantly enhance prison security, it seems doubtful that the Legislature intended to undermine the policy favoring the confidentiality of attorney-client communications by permitting unrestricted examination of such materials.

The People argue that, even under the rationale of our decision in Jordan, supra, those printed enclosures which are publicátions cannot be regarded as communications from anyone except the author or writer. This contention is not persuasive, particularly in light of the broad definition of “confidential communication” set forth in

section 952 of the Evidence Code. That

section in pertinent part provides: “As used in this article, ‘confidential communication between client and lawyer’ means information transmitted between a client and his lawyer in the course of that relationship . . . and includes a legal opinion formed and the advice given by the, lawyer . . . .” (Italics added.) Certainly a law review

article or a newspaper clipping of potential use to the inmate-client is information of the type' properly protected by the privilege. Nor are we persuaded by the People’s contention that a publication which is in the public domain is somehow per se nonconfidential. Once an attorney has determined that a particular publication is relevant to his inmate-client’s case, that publication may become an integral part of the attorney’s legal advice or strategy and, as such, it would be entitled to

section 2600, subdivision (2), protection. Petitioner also challenges the Department of Corrections policy limiting the attorney-inmate confidential correspondence privilege to members of the California State Bar. First he argues that such a limitation is inconsistent with Evidence Code sections 950 and 954 (lawyer-client privilege). Although “lawyer” is defined in

section 950 to include those “authorized to practice law in any state or nation,” Penal Code

section 2600, subdivision (2) (fn. 1, ante), which sets forth the civil right statutorily restored to prisoners is limited to “any member of the State Bar, or holder of public office.” Therefore, the department’s policy seems consistent with the language of

section 2600. Petitioner, however, asserts that prisoners have a constitutional right to correspond confidentially with out-of-state attorneys. Petitioner does not indicate his reasons for seeking counsel and makes only a general allegation that his correspondence with out-of-state attorneys is severely inhibited. Without attempting to decide in the abstract the full extent of petitioner’s rights in this regard, we hold that confidential correspondence is to be permitted, even though no California court order has been obtained, if the out-of-state attorney makes a reasonable showing to the prison authorities:

(1) That he is duly authorized to practice law in his state; (2) that an attorney-client relationship exists; and (3) that this relationship concerns a pending criminal matter, or the conditions* of his client’s confinement, including any related application for extraordinary relief. Respondent is directed to cease enforcing Director’s Rule 2406 of the Department of Corrections to the extent it is inconsistent with the views expressed herein. Tobriner, J., Mosk, J., and Clark, J., concurred. Penal Code

section 2600 provides in pertinent part as follows: “A sentence of imprisonment in a state prison for any term suspends all the civil rights of the person so sentenced, and forfeits all public offices and all private trusts, authority, or power during such imprisonment. But the Adult Authority may restore to said person during his imprisonment such civil rights as the authority may deem'proper, except the right to act as a trustee, or hold public office or exercise the privilege of an elector or give a general power of attorney. “This

section shall be construed so as not to deprive such person of the following civil rights, in accordance with the laws of this state: “

(2) To correspond, confidentially, with any member of the State Bar, or holder of public office, provided that the prison authorities may open and inspect such mail to search for contraband. “

(4) To purchase, receive, and read any and all newspapers, periodicals, and books accepted for distribution by the United States Post Office. Pursuant to the provisions of this section, prison authorities shall have the authority to exclude obscene publications or writings, and mail containing information concerning where, how, or from whom such matter may be obtained; and any matter of a character tending to incite murder,_ arson, riot, violent racism, or any other form of violence; and any matter concerning gambling or a lottery. Nothing in this

section shall be construed as limiting the right of prison authorities (

i) to open and inspect any and all packages received by an inmate and (ii) to establish reasonable restrictions as to the number of newspapers, magazines, and books that the inmate may have in his cell or elsewhere in the prison at one time.” Director’s Rule 2406, subdivision (4), provides in pertinent part: “Attorneys communicating with inmates on legal matters may seek to enclose material with their letters, such as news articles, copies of cases or other information. The department does not view such material as being within the scope of the privilege granted by Penal Code

Section 2600, and so it may be examined in the same manner as all other non-privileged mail.” Under Director’s Rule 2406, subdivision (3), incoming legal mail from a member of the State Bar registered with the institution is opened by a prison employee in the presence of the inmate to whom it is addressed. The privileged correspondence (which as we hold herein includes printed enclosures) is not read, although the" letter is shaken out and inspected for prohibited contraband. We note that this type of inspection has recently been approved by the United States Supreme Court in Wolff v.

McDonnell (1974) 418 U.S. 539, 573-577 [41 L.Ed.2d 935, 961-963, 94 S.Ct. 2963], An “enclosure” includes anything other than the attorney-inmate letter itself. The particular enclosures involved in petitioner’s case were draft pleadings and a Xerox copy of an unreported decision, which were allegedly each related to petitioner’s anticipated litigation regarding prison censorship practices' and regulations prohibiting marriage. Examples of other enclosures which would be affected by rule 2406 are Xeroxed law review articles, affidavits and newspaper articles summarizing cases. We note that Penal Code

section 2600 was recently considered in Procunier v. Martinez, 416 U.S. 396 [40 L.Ed.2d 224, 94 S.Ct. 1800]. That case, however, concerned prison censorship of personal mail and did not deal with the issue of confidential attorney-inmate correspondence. Illustrative of items which would threaten prison security are narcotics, liquors, weapons and explosives. The Penal Code specifically proscribes importation of these articles to prisons. (See Pen. Code, §§ 171a, 4573, 4573.5, and 4574.) Monitoring these visits is specifically prohibited by Penal Code

section 636; case law firmly establishes the general principle that a prisoner has a right to consult with his attorney in absolute privacy, which right is not abrogated by the legitimate interests of prison authorities in the administration of the institution. (In re Jordan, supra, 7 Cal.3d 930, 937-938, fn. 3.) The attorney-client privilege is set forth in Evidence Code

section 954. Witkin notes that the older authorities are directly divided as to whether the attorney-client privilege should be liberally or strictly construed. (See Witkin, Cal. Evidence, Witnesses, § 795.) Whatever may be the better rule generally, In re Jordan, supra, T Cal.3d 930, mandates liberal construction as to the attorney-inmate privilege of Penal Code

section 2600, subdivision (2). (See also In re Harrell, supra, 2 Cal.3d 675, 702 [cert. den. 401 U.S. 914 (27 L.Ed.2d 814, 91 S.Ct. 890)], holding that with regard to Pen. Code, § 2600, subd. (4) [right to purchase, receive, and read published writings] the civil rights of those convicted of crime be limited only in accordance with legitimate penal objectives.) See Business and Professions Code

section 6068, subdivision (e) (duties of attorney); Evidence Code

section 950 et seq. (lawyer-client privilege); and Penal Code

section 636 (making it a felony to record conversation between a prisoner and his attorney without permission from all parties). Under the present Department of Corrections policy all out-of-state attorneys who have obtained an order from a California court granting the right to represent an inmate in a criminal proceedings are treated as California attorneys with regard to confidential correspondence. (Department of Corrections Administrative Bulletin No. 74/3, Feb. 22, 1974.) Other out-of-state attorney situations are not governed by any rule but are handled on a case by case basis.

Petitioner contends that restricting confidential correspondence to California attorneys violates an inmate’s constitutional rights to freedom of expression, to petition for redress of grievances, to access to the courts, to assistance of counsel, and to equal protection of the laws. We note that these conditions and particularly the limitation of the confidential privilege to criminal matters, appear to be consistent with recent dictum, of the United States Supreme Court regarding the constitutional status of attorney-inmate correspondence. (Wolff v.

McDonnell (1974) supra, 418 U.S. 539, 573-579 [41 L.Ed.2d 935, 961-964].)