Authorities recorded privileged attorney-client conversations, district attorney’s office says

After Los Angeles County’s public defender expressed concerns about possibly illegal recordings of privileged attorney-client meetings at a downtown courthouse, a spokeswoman for the district attorney has acknowledged that such recordings had “inadvertently” occurred in one case.

The spokeswoman, Shiara Davila-Morales, said Friday that recordings had been made of conversations between a defense attorney and a client in a case involving three individuals accused of kidnapping and extortion.

Davila-Morales said the district attorney’s office has not listened to the recordings and has no intention of using them in the prosecution of the case.

The statement from the district attorney’s office in response to inquiries from The Times came after Interim Public Defender Nicole Davis Tinkham sent a confidential memo to the county Board of Supervisors on Wednesday.

The memo, a copy of which was obtained by The Times, said the public defender’s office had launched an investigation into a recording operation by sheriff’s and police officials of attorney-client conversations at the Clara Shortridge Foltz Criminal Justice Center.

“Informally we have been told [the L.A. County Sheriff’s Department] regularly conducts these ‘Perkins’ recording operations in any facility they deem to be a custody facility, including courthouse facilities, and that a Perkins operation did in fact occur in the attorney conference room,” Tinkham wrote. “We are not clear how many attorney-client communications were recorded.”

The term “Perkins operation” is generally used to describe a sting operation in which an undercover law enforcement official or informant records an inmate in custody.

The memo does not state how or when the public defender’s office became aware of the recording operation or for how long it took place.

Two people familiar with the matter said an incident in the courthouse’s 14th-floor attorney conference room in recent weeks raised concerns.

The room is dedicated for use by attorneys, who must identify themselves to sheriff’s deputies before their clients are brought in. The clients are placed inside narrow, confined spaces and then allowed to communicate with attorneys through a glass wall via telephone.

There is no notice indicating that communications may be recorded.

The case in which Davila-Morales said the recording occurred involved a trio charged with 17 felonies, including kidnapping, assault with a firearm, grand theft and mayhem.

All three defendants are in custody, the third having been arrested earlier this month. A video of the arrest, which shows several police officers aiming their guns at an unarmed woman, elicited outrage on social media.

Davila-Morales declined to comment on where the recorded attorney-client conversation occurred, how it was inadvertently recorded or whether it was an isolated incident.

Communications between attorneys and their clients are generally confidential and protected under the law. The protection may not apply when those communications are used to further a crime, civil violation or fraud.

“We firmly believe recording our attorney-client communications is in violation of the law,” Tinkham, the public defender, wrote in the memo. “As we uncover more details we will develop a comprehensive strategy to enjoin this activity.”

Tinkham declined to comment on the memo but said in a statement, “The attorney-client privilege is a cornerstone of our justice system. I am deeply concerned about any actions that could jeopardize this tenet.”

A police spokesman said in an email, “The Los Angeles Police Department does not record any conversations between clients and attorneys, however investigators may record inmate to inmate conversations.” The spokesman declined to elaborate.

The Sheriff’s Department said in a statement, “The Sheriff’s Department’s policy is to NOT record conversations between attorneys and their clients without a court order, and there is no practice of recordings of any attorney conversations.”

Lou Shapiro, a criminal defense attorney and former public defender, said the allegation of recording is upsetting but perhaps unsurprising.

“As disturbing and offensive as this appears to be, unfortunately the argument can be made that the [courthouse] room is an extension of the county jail and therefore there is no expectation of privacy,” he said.

Shapiro later clarified that his comment was referring to inmate-to-inmate conversations, not those between lawyers and their clients.

Others said that even one such recording violates a defendant’s right to due process and could undermine the already low levels of trust indigent clients have in the public defender’s office.

The issue of recorded attorney-client calls has been raised somewhat prominently in recent months in the prosecution of former rap mogul Marion “Suge” Knight, whose attorneys have been accused of discussing witness tampering during jailhouse phone calls.

A judge signed an order allowing investigators to listen to the calls, but the order has been contested as invalid.

Times staff writer James Queally contributed to this report.

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UPDATES:

This article has been updated with attorney Lou Shapiro’s clarification that the comment referred to conversations between inmates, not between lawyers and clients.