Law enforcement personnel can—and will—listen to, if not record, phone conversations at police stations and jails. They might even do so when the arrestee or prisoner is speaking with counsel.
A series of courts have held that there is no attorney-client privilege with regard to calls on police station, jail, or prison phones. These courts have justified their rulings by the fact that the inmates in question were advised—sometimes by signs, sometimes by phone recordings—that their calls were subject to monitoring, recording, or both. Accordingly, the prisoners couldn’t have a reasonable expectation that their phone calls, even with lawyers, would be private.
But depending on the circumstances, a court may hold that an attorney-client conversation on a jail or similar telephone system is privileged. Some courts have held that the privilege applies where the client and attorney have no basis to believe that their call will be monitored.
Those who are in custody should be prepared for the possibility that their phone conversations with legal counsel are being monitored and recorded. If there is any ambiguity, the inmate should ask his or her lawyer whether the authorities might be recording the call.