Appeal from the United States District Court for the Western District of Wisconsin. No. 10-cv-112-slc-Barbara B. Crabb, Judge.
The opinion of the court was delivered by: Posner, Circuit Judge
Before EASTERBROOK, Chief Judge, and POSNER and HAMILTON, Circuit Judges.
This appeal from the dismissal of a suit for failure to state a claim presents the recurrent issue of the constitutional rights of prison inmates regarding "legal mail," a technical term for mail relating to legal proceedings. Fed R. App. P. 4(c); Fed. R. App. P. 25(a)(2)(C). Almost all civil proceedings by prisoners pit the prisoner against employees of the prison, the prison itself, or a state or federal correctional authority. It is natural for courts to be concerned about the defendants or their agents reading the prisoner's correspondence with his lawyer, if he has one. It is like a litigant's eavesdropping on conferences between his opponent and the opponent's lawyer. The plaintiff claims that his constitutional rights were violated when prison guards, outside his presence, opened legal mail addressed to him.
Suppose a letter arrives at the prison that is known to be from a prisoner's lawyer to the prisoner, and a prison guard reads it and makes a copy for his superiors in order to give them insight into their opponent's litigation strategy. Gomez v. Vernon, 255 F.3d 1118, 1123-24, 1133 (9th Cir. 2001). This would give the defendants a litigating advantage sufficient, the cases hold, to violate the prisoner's constitutional right to access to the courts (on which see Christopher v. Harbury, 536 U.S. 403, 412-13 (2002); Lewis v. Casey, 518 U.S. 343, 350-51, 354 (1996), and Bounds v. Smith, 430 U.S. 817, 828-29 (1977)). "The Fourteenth Amendment guarantees meaningful access to courts, [and] . . . the opportunity to communicate privately with an attorney is an important part of that meaningful access." Dreher v. Sielaff, 636 F.2d 1141, 1143 (7th Cir. 1980); see also id. at 1143-46; Merriweather v. Zamora, 569 F.3d 307, 315-17 (6th Cir. 2009); Al-Amin v. Smith, 511 F.3d 1317, 1325-35 (11th Cir. 2008); Brewer v. Wilkinson, 3 F.3d 816, 820 (5th Cir. 1993). Not that the lawyer-client privilege is constitutional. Maness v. Myers, 419 U.S. 449, 466 n. 15 (1975); Lange v. Young, 869 F.2d 1008, 1012 n. 2 (7th Cir. 1989); Smith v. Moore, 137 F.3d 808, 819-20 (4th Cir. 1998); Clutchette v. Rushen, 770 F.2d 1469, 1471 (9th Cir. 1985). But bestowing it on one side of a litigation and denying it to the other side can place the denied side at a critical disadvantage.
And so with prison officials' reading a prisoner's mail to his lawyer. Jones v. Caruso, 569 F.3d 258, 267-68 (6th Cir. 2009); Bell-Bey v. Williams, 87 F.3d 832, 836-40 (6th Cir. 1996); see also Thornburgh v. Abbott, 490 U.S. 401, 411-12 and n. 10 (1989). The attorney-client privilege is centrally concerned with confidences communicated by the client to his lawyer in order to enable the lawyer to formulate an effective litigation strategy.
A number of cases characterize the reading of mail to or from a prisoner's lawyer in a pending or impending litigation as infringing the right of free speech rather than or in addition to the right of access to the courts. The theory is that reading communications between a lawyer and his client "chills the individual's ability to engage in protected speech." Denius v. Dunlap, 209 F.3d 944, 954 (7th Cir. 2000); see also, e.g., Jones v. Brown, 461 F.3d 353, 358-60 (3d Cir. 2006); Davis v. Goord, 320 F.3d 346, 351-52 (2d Cir. 2003); Brewer v. Wilkinson, supra, 3 F.3d at 821, 825-26. But since the purpose of confidential communication with one's lawyer is to win a case rather than to enrich the marketplace of ideas, it seems more straightforward to base the concern with destroying that confidentiality on the right of access to the courts (or, as we're about to point out, on the due process right to a fair hearing). The Supreme Court in Wolff v. McDonnell, 418 U.S. 539, 576 (1974), left open whether "inspection of incoming mail from an attorney placed an obstacle to access to the court," but a number of cases at our level have taken that step, as we've seen.
Not that a prisoner or anyone else has a constitutional right to a lawyer in a civil case at public expense-even a civil case, such as a habeas corpus proceeding, that challenges a criminal judgment. "Although prisoners enjoy a fundamental right of access to the courts, see Lewis v. Casey, 518 U.S. 343 (1996), there is no right of subsidized access." Johnson v. Daley, 339 F.3d 582, 586 (7th Cir. 2003) (emphasis in original). But if the prisoner hires a lawyer-or a lawyer is willing to work for the prisoner for free-the judge may not refuse to accept filings from the lawyer. "If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense." Powell v. Alabama, 287 U.S. 45, 69 (1932). Powell was a criminal case, but the decision was based on the due process clause rather than the Sixth Amendment (which had not yet been held applicable to the states), and its logic embraces civil litigation. As noted in Potashnick v. Port City Construction Co., 609 F.2d 1101, 1118 (5th Cir. 1980), "historically and in practice, the right to a hearing has always included the right to the aid of counsel when desired and provided by the party asserting the right."
Whereas cases like Lewis v. Casey involve claims on prison resources (as in challenges to the adequacy of a prison's law library), Powell, and also Wolff v. McDonnell, supra; Johnson v. Avery, 393 U.S. 483, 484-87 (1969), and Ex Parte Hull, 312 U.S. 546, 547-49 (1941), involve active interference by the prison with a prisoner's unsubsidized efforts to enforce his legal rights, and provide a sturdier ground for judicial intervention. If the prisoner has counsel (or is communicating with a lawyer in the hope the lawyer will agree to represent him), the law's allowing his opponents to eavesdrop on his communications with the lawyer would undermine the prisoner's right to be represented, at a hearing, by counsel at the prisoner's expense. Cf. Potashnick v. Port City Construction Co., supra, 609 F.2d at 1118-19. The effects of denying or impairing the right could be disastrous. Imagine a white-collar prisoner embroiled in complex bankruptcy proceedings and barred from communicating with his bankruptcy lawyer by an exceptionless rule forbidding prisoners to communicate with lawyers in civil litigation.
Parenthetically we note that while most cases brought by prisoners are civil-either prisoner civil rights cases or post-conviction challenges to criminal judgments- many are criminal, since criminal defendants often are in jail during their prosecution and also during the appeal proceeding if they have been convicted. Prison officials are likely to be more interested in prisoners' suits against them than in suits relating to the prisoners' criminal judgments. A practice of prison officials reading mail between a prisoner and his lawyer in a criminal case would raise serious issues under the Sixth Amendment (and its application, by interpretation of the Fourteenth Amendment, to state criminal defendants), which guarantees a right to counsel in criminal cases. Altizer v. Deeds, 191 F.3d 540, 549 n. 14 (4th Cir. 1999); United States v. Mastroianni, 749 F.2d 900, 905-08 (1st Cir. 1984); United States v. Novak, 531 F.3d 99, 100-04 (1st Cir. 2008); Clutchette v. Rushen, supra, 770 F.2d at 1471-72.
A different issue is presented by communications from courts and agencies to prisoners (rather than from prisoners' lawyers), or vice versa, which the plaintiff in this case, an inmate of a Wisconsin state prison, nevertheless contends are entitled to the same confidentiality as mail from a prisoner's lawyers. Most such communications are public documents, Antonelli v. Sheahan, 81 F.3d 1422, 1431-32 (7th Cir. 1996); Martin v. Brewer, 830 F.2d 76, 78 (7th Cir. 1987); Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996), which the prison officials have as much right to read as the prisoner; some that are nonpublic are also routine and nonsensitive. But some are sensitive. Sallier v. Brooks, 343 F.3d 868, 876-77 (6th Cir. 2003). Suppose the prisoner were asking that materials that he had submitted ex parte be held in camera or withheld from his adversary.
No legal mail is sacrosanct, however. Prison officials cannot be certain, just from the return address on an envelope, that a letter is from a lawyer (or indeed from a court or agency) rather than from a criminal confederate of the prisoner masquerading as a lawyer, as in Fontroy v. Beard, 559 F.3d 173, 175 (3d Cir. 2009), and State v. Steffes, 659 N.W.2d 445, 448-49 (Wis. App. 2003). Occasion-ally the lawyer is a criminal confederate of the client, as in United States v. Stewart, 590 F.3d 93, 102-08 (2d Cir. 2009); United States v. Merlino, 349 F.3d 144, 149-52 (3d Cir. 2003); United States v. Cano, 289 F.3d 1354, 1359-60 (11th Cir. 2002); United States v. Abbell, 271 F.3d 1286, 1292-94 (11th Cir. 2001) (per curiam), and United States v. Ross, 190 F.3d 446, 448-49 (6th Cir. 1999). An accommodation is needed between the prisoner's interest in the confidentiality of communications with his lawyer (and of some communications with the court or agency in which his case is pending, whether or not he is represented by a lawyer) and the prison's interest in security. We call this a need for an "accommodation" rather than for "a balancing of competing interests" because ordinarily and in the present instance competing interests of the sort considered by courts in formulating rules of law can't be weighed; they are imponderables. The realistic goal is a via media in which each interest is given as much effect as possible.
So on the one hand (and postponing consideration of court and other non-attorney legal mail), prison employees, who routinely and for obvious reasons of security open prisoners' incoming mail, should be permitted to open incoming mail from a prisoner's lawyer to verify that it is indeed a communication, related to current or prospective representation, from a lawyer who is authorized to practice law in the relevant juris-diction and is in fact the prisoner's lawyer; on the other hand the prisoner should be allowed to be present when the letter is opened. Al-Amin v. Smith, supra, 511 F.3d at 1325-26; Jones v. Brown, supra, 461 F.3d at 359; Davis v. Goord, supra, 320 F.3d at 351; Sallier v. Brooks, supra, 343 F.3d at 874; Powells v. Minnehaha County Sheriff Dep't, 198 F.3d 711, 712 (8th Cir. 1999) (per curiam). The approach was sketched by the Supreme Court in Wolff v. McDonnell, supra, 418 U.S. at 576-77: "If prison officials had to check in each case whether a communication was from an attorney before opening it for inspection, a near impossible task of administration would be imposed. We think it entirely appropriate that the State require any such communications to be specially marked as originating from an attorney, with his name and address being given, if they are to receive special treatment. It would also certainly be permissible that prison authorities require that a lawyer desiring to correspond with a prisoner, first identify himself and his client to the prison officials, to assure that the letters marked privileged are actually from members of the bar. As to the ability to open the mail in the presence of inmates, this could in no way constitute censorship, since the mail would not be read. Neither could it chill such communications, since the inmate's presence insures that prison officials will not read the mail. The possibility that contraband will be enclosed in letters, even those from apparent attorneys, surely warrants prison officials' opening the letters" (emphasis in original).
Protection of the privacy of attorney mail in this fashion is imperfect; the prison employee who opens the letter will have to glance at the content to verify its bona fides. But the imperfection is necessary to protect the prison's interest in security-and is lessened by allowing prisoners to engage in unmonitored phone conversations with their lawyers. Wisconsin allows this, Wis. Admin. Code § DOC 309.39(6)(a), as do federal regulations in the ...