The right to communicate privately with your lawyer is a sacrosanct element of American law. The constitutional right to effective legal counsel requires that you be able to talk and correspond with your lawyer without having to worry that someone is listening in.

Evidence suggests that the New York City Department of Correction may not be overly concerned with his right. More than a dozen pieces of mail from people being held on Rikers, addressed to their lawyers and clearly marked "privileged legal mail" arrived at their lawyers' offices this week with the envelopes torn open at both ends, according to MK Kashian and David Klein, who received the mail.

A video posted on social media by Kaishian and shared with Hell Gate shows the state of some of the 14 envelopes the lawyers received already open.

Board of Correction rules governing how the DOC handles mail dictate that jail officials can only open outgoing mail if they have a warden's written order "articulating a reasonable basis to believe that the correspondence threatens the safety or security of the facility, another person, or the public." 

Privileged mail with lawyers enjoys an even higher protection under the City rules: "Outgoing privileged correspondence shall not be opened or read except pursuant to a lawful search warrant."

The Department of Correction did not acknowledge repeated requests for comment.

It's not just New York City rules that protect incarcerated people’s correspondence with their lawyers. So does a robust body of court decisions linking the right to send mail to your lawyer without fear of it being opened to basic constitutional rights.

"There's well-established case-law, and it's a violation of the First Amendment, the Sixth Amendment, and the Fourteenth Amendment," Kaishian said. 

Communication with clients awaiting trial on Rikers was already difficult, Kaishian said.

Last year it was revealed that Securus, the company which operates the phone system available to people held in city custody, had delivered recordings of hundreds of privileged phone calls straight to district attorney's offices.

Physically visiting clients on Rikers means the clients are subjected to strip searches both before and after any meeting, she said, and even then, "the meetings aren't really private. The guard is standing right outside the door, and they've responded to things we’ve said inside; they can clearly hear us." 

Now, with privileged mail evidently being rifled, Kaishian says, the situation is only more dire.

"There's no privileged way right now to communicate with incarcerated people. And that is by design."

Reporting by Nick Pinto.

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