Unsettled Weather: The Need for Clear Rules Governing Intrusion Into Attorney-Client Communications

The Sixth Amendment right to counsel is one of the most crucial parts of the criminal justice system. Because of the nature of crimes and investigations, the government or its agents will sometimes intrude into attorney-client conversations. The Supreme Court last addressed the impact of these intrusions over fifty years ago in Weatherford v. Bursey. Unfortunately, the Court failed to address many of the issues surrounding these intrusions. This failure has led to a split amongst the circuit courts of appeal, with a resulting system of rules that is based on where the intrusion occurred. This situation is untenable in a modern age when crimes and investigations frequently cross jurisdictional boundaries. Both defendants and law enforcement officials are entitled to consistent rules. This Article analyzes relevant Sixth Amendment case law and concludes that fairness should be the guiding principle for rules about government intrusion into attorney-client conversations. This Article then proposes general rules based on fairness that should be established by the Supreme Court