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Last Oct. 31, when U.S. Attorney General John Ashcroft altered prison regulations to allow the government to eavesdrop on prisoners’ conversations with their lawyers in cases linked to terrorism, lawyers protested the threat to attorney-client privilege. The loudest howls came from immigration lawyers, the practitioners most affected. Of the 1,200 or so people detained in the investigation of the Sept. 11 attacks, more than 750 of them have been charged as illegal immigrants. The eavesdropping rule has been joined by a lengthening line of laws, regulations and other measures that constrain attorneys representing those swept up in the probe. But have the measures actually crimped attorneys’ advocacy for their clients? Or are they — as the government has argued — simply an inconvenience, justified by the need to better guard the country against terrorism? Against expectations, nine lawyers who have represented more than 60 “special interest” cases — men detained in the investigation of the attacks on the World Trade Center and the Pentagon — all insist the restrictions have not affected the outcomes of their clients’ cases. Nonetheless, the changes governing their practices as lawyers, coupled with an even longer list of restrictions on the rights of their clients, have left the immigration bar feeling hobbled and not a little resentful of the way the attorney-client relationship has been transformed since last year. The most common ailment afflicting lawyers with special interest cases starts at the most basic level — having a conversation with a client. Although monitoring of client conversations is supposed to be preceded by written warning, no one believes warnings will be given. “I have a rule: No phone conversations, period,” Clifton, N.J., solo Sohail Mohammed says he tells clients. “Whatever you tell me I cannot assure it will be kept confidential. I will keep it confidential, my staff will keep it confidential, but I don’t know who’s listening in.” He’s not the only attorney with a “no phone conversations” rule. The fear of monitoring has had expensive and inconvenient effects on Malea Kiblan of Kiblan & Battles in McLean, Va. She has been retained by the Saudi Arabian Embassy to represent Saudi nationals caught up in the special interest process. “I have traveled to New Jersey and New York [four times] to confer with attorneys in our cases because I don’t want to do it over the phone.” New York solo Sandra Nichols went so far as to price having her office “swept” for electronic eavesdropping devices, but at $2,300 she says it was too expensive. “At one point I was getting clicks on my phone in the office,” she says. In jail visits, the limited scope of conversations has stymied Nichols’ ability to identify possible problems her client might have. In the case of a material witness, “I could not really figure out how best to represent that client” without a confidential conversation, she said. On another case, she once saw a colleague tell a client to “remember where you are,” when the client began to tell them things they would normally have kept behind the wall of lawyer-client privilege. “When I go to see my clients they think we’re in love because we basically whisper in each other’s ears as much as we can in the lockup,” says San Diego solo Randall Hamud, who successfully forced the release of a material witness detainee in New York. Hamud is currently retained by Zacarias Moussaoui’s mother to assist in the defense of her son, the only person charged with direct involvement in the Sept. 11 attack. Moussaoui has refused to talk to him. The newly constricted nature of client conversations is reducing the amount of information attorneys have before they go into court for their clients. Mohammed says he saw a case in immigration court where a client began to tell the judge he was afraid to go back to his home country because he might be tortured. The judge began to yell at the attorney because it was the first time the issue had come up, and a real fear of torture can trigger an asylum claim, which had not been filed. “I’m hearing it for the first time,” Mohammed says the attorney replied. Hamud says he has seen a similar problem. Rather than risk a conversation in jail, “I know some attorneys who actually wait to go to open court with their clients … they take them aside in open court, in the most private area they can find, and confer on certain issues.” Newark, N.J.’s Regis Fernandez, a solo practitioner who has represented dozens of special interest cases, says the restrictions merely codify suspicions of surveillance he has lived with for years. “I had a couple of cases a few years ago where I suspected that the INS officer regularly inspected prison logbooks to determine which prisoners were visited over the weekend and — surprise! — many of them were removed in record time,” he says. “We’re always working under the assumption that our conversations are monitored or can be monitored, it’s kind of a liberating feeling in that sense.” Only one attorney, Heli Myyrylainen-Awany, an associate at Friedman & Pearlman in Jersey City, N.J., who has represented 15 detainees, says her practice is largely unchanged by the new terrain. “My clients were not fearful of any phone taps that there may have been, or listening devices in the visiting areas in jail, because none of my clients had criminal backgrounds,” she says. Like Myyrylainen-Awany, the lawyers who spoke to the New Jersey Law Journal all say the changes have not affected the ultimate outcome for the clients — only one-tenth of the total number of detainees remain in jail, the remainder have been deported or released. But those results came after delays of weeks and months on matters that before last year often took only a few days, they say. Overall, many of the attorneys suggested that the greatest effect of the changes is to deter attorneys from going into the field in the first place. Clifton, N.J.’s Mohammed has long complained that the legal and social stigmas attached to Sept. 11 cases have prevented lawyers from taking cases. Nichols cites the arrest of New York attorney Lynne Stewart as a deliberate move against the bar. “I think it was done to have a chilling effect and I know a lot of attorneys are reluctant to represent detainees post-9/11.” The Immigration and Naturalization Service declined comment, deferring to the Department of Justice. The DOJ did not respond to repeated requests for comment by press time.

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