California Code of Regulations
Title 15 - Crime Prevention and Corrections
Division 3 - Adult Institutions, Programs and Parole
Chapter 1 - Rules and Regulations of Adult Operations and Programs
Subchapter 2 - Incarcerated Person Resources
Article 7 - Visiting
Section 3178 - Attorney Visitations and Consultation

Universal Citation: 15 CA Code of Regs 3178

Current through Register 2024 Notice Reg. No. 38, September 20, 2024

(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 incarcerated person and their 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 incarcerated person 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 incarcerated person on any scheduled visiting day and shall be provided the same accommodations including the schedule, as a regular visitor.

(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.

(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 CDCR number of the incarcerated person(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 incarcerated person shall contact the institution/facility at which the incarcerated person 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 incarcerated person's attorney either by appointment by the court or at the incarcerated person's request;

(2) They have been requested by a judge to interview a named incarcerated person for purposes of possible appointment as counsel by the same court;

(3) They are requesting to visit an incarcerated person who may be a witness directly relevant to a legal process, purpose, or proceeding;

(4) They are seeking to interview a named incarcerated person, at the request of the incarcerated person, for the purpose of representation of the incarcerated person 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 incarcerated person when the incarcerated person 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 incarcerated person(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 incarcerated person. 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 incarcerated person, attorneys or attorney representatives may request to visit incarcerated persons 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 incarcerated person, the institution head is authorized to:

(1) Require proof that the incarcerated person 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 incarcerated person shall be made in writing to the institution head. The request shall include:

(1) The name and CDCR number of the incarcerated person.

(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 incarcerated person 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 incarcerated person 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 incarcerated person may retain and take from the visiting area any legal documents given to them by the attorney or attorney representative, providing the incarcerated person 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 incarcerated person.

(2) Any and all items including written and printed material that an incarcerated person 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 incarcerated person does not consent to an inspection of the contents of a document given to the incarcerated person 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 incarcerated person and not otherwise prohibited by law or these regulations.

(p) An attorney or attorney representative may be permitted, with the incarcerated person's consent, to audio record the incarcerated person'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 incarcerated person interviews, with the incarcerated person'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 incarcerated person 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.

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).

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