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http://www.vsb.org/docs/Thacher-050819.pdf
Prince William County prosecutor reprimanded for eavesdropping on inmate calls.
I. FINDINGS OF FACT
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At all times relevant to the conduct set forth herein Respondent was an attorney licensed to practice law in the Commonwealth of Virginia.
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Complainant, Alan Cilman (Cilmari") represented a client (the client") in a criminal case set in the Circuit Court for Prince William County. The client was incarcerated at the Adult Detention Center ("the Detention Center") in Manassas, Virginia.
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Calls from the Detention Center are monitored and recorded by Globel Tel-Link. In order for the calls to be tagged as protected attorney client calls, the attorney must register his phone number so that it will be identified by the system and the call will not be recorded.
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Cilman did not properly register his phone number and four calls from his client were recorded. The calls took place on November 27 and 28, 2017, and December 1 and 4, 2017.
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When a call was initiated, a preamble played that stated, "This call is from a corrections facility and is subject to monitoring and recording." On three of the caIIs, upon hearing the preamble, Cilman stated that he was an attorney. On the November 28, 2017 call, he stated, "ok, F— Globel Tel-Link, attorney/ client, stop recording." On the December 1, 2017 call he stated, "If they're listening they can go F— themselves." On the December 4, 2017 call, he stated, "F— you Global Tel-link, F— you Prince William County jail, F— you Prince William County, Shithead _get off the line this is attorney client."
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On December 5, 2017,·in anticipation of the client's bond hearing, Respondent requested the client's call log. On at least one call, Respondent heard Cilman's statement and recognized his voice. Knowing that he was an attorney, she listened to the call.
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Respondent consulted with Chief Deputy Commonwealth Attorney Rick Conway and other colleagues. They concluded that listening to the call was appropriate since Cilman did not register with Global Tel-Link properly and thus, had no expectation of privacy and waived attorney client privilege.
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Although Respondent obtained the client's call log on December 5, 2017, she did not provide it to Cilman until January 17, 2018.
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At a hearing on January 18, 2018, the court questioned Respondent about the phone calls. The following is an excerpt from the transcript of this colloquy:
Court: "Right, okay. And when did you come to the realization that some of those recorded phone calls were attorney/client phone calls?"
Respondent: "When I listened to them or when I got them."
Court: "What do you mean when you listened to them or when you got them?"
Respondent: "Well, Mr. Cilman's voice is the first thing you hear, saying, "F-you, Prince William County, F-you Global Tel-Link, stop listening, get off the line."
Court: "Okay."
Respondent: "F-everybody ."
Court: "Okay."
Respondent: "So, I realized that they were" - -
Court: "Then you listened further?"
Respondent: "I did listen to some."
Court: "Okay, Well, if you knew that they were attorney/client conversations" - -
Respondent: "What I will tell the Court is that I spoke with the jail to confirm whether or not Mr. Cilman had registered his number as an attorney - - the jail can only not record phone calls if they know the number is an attorney phone number. They don't- - they can't possibly know every attorney's phone number in Virginia. They have to have someone register their number. Mr. Cilman previously registered a different phone number. He is therefore aware of the procedure of how to do it. He has done it before. He has not updated his number or added this number to anything. He knows these recordings.
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According to Cilman, on each of the recorded calls, he discussed trial strategy with his client.