Inmate Legal Visits
NY-ADR
6/27/07 N.Y. St. Reg. COR-26-07-00005-P
NEW YORK STATE REGISTER
VOLUME XXIX, ISSUE 26
June 27, 2007
RULE MAKING ACTIVITIES
DEPARTMENT OF CORRECTIONAL SERVICES
PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. COR-26-07-00005-P
Inmate Legal Visits
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed action:
Addition of Part 210 to Title 7 NYCRR.
Statutory authority:
Correction Law, sections 112 and 146
Subject:
Inmate legal visits.
Purpose:
To provide procedures for visits between inmates and their legal representatives.
Text of proposed rule:
PART 210 INMATE LEGAL VISITS
(Statutory Authority: Correction Law §§ 112, 146)
Sec.
§ 210.1 Purpose. To provide a uniform manner in which inmate legal visits are to be conducted throughout the department in conformance with statutory and case law regarding inmate access to the courts. This regulation contains the guidelines which govern legal visits within a facility under the control of the New York State Department of Correctional Services.
§ 210.2 Definitions.
(a) Legal Visit: A visit between an inmate and an attorney, approved legal representative, or attorney's authorized representative for the purpose of discussing confidential legal matters.
(b) Attorney: One who is duly admitted to the practice of law in this State or another jurisdiction; he or she need not be formally retained or be the attorney-of-record for the inmate.
(c) Approved Legal Representative: Second or third year law school students and law school graduates approved by order of the appropriate Appellate Division (See Judiciary Law § 484).
(d) Attorney's Authorized Representative: Paralegals, law students, and investigators or any other individuals identifiably employed by or under the supervision of and responsible to an attorney.
§ 210.3 Policy.
(a) The right of meaningful access to the courts and the right to counsel are rights an inmate clearly retains upon incarceration. Accordingly, an inmate retains the right to legal visits.
(b) A legal visit may be used solely for the purpose of discussing confidential legal matters.
(c) A legal visit by an attorney's representative (e.g. an investigator) unaccompanied by an attorney will only be authorized if the attorney for whom the representative is employed certifies to the department:
(1) that such visit is necessary in connection with his or her legal services to the inmate being visited; and
(2) that the legal services relate to a specific and unresolved matter.
(d) A facility or institution may not impose any further restrictions without the prior approval of the counsel to the department.
§ 210.4 Procedure.
(a) Attorneys and their representatives are expected to give at least one full business day (24 hours minimum) notice to a facility indicating the inmate(s) requested to be seen. This notice may be in writing or by telephone. The superintendent may authorize a legal visit upon less than one full business day notice if he or she deems there is good cause to do so. Attorneys and/or their representatives may, in the alternative, visit an inmate in the regular visiting room in accordance with the procedures set forth in Part 200 of this Title, “Visitation.”
(b) The superintendent may deny legal visits of any attorney or representative for good cause if such action is necessary to maintain the safety, security or good order of the facility. However, the superintendent must consult with counsel's office prior to any such denial.
(c) Legal visits are to be conducted Monday through Friday except holidays, during the normal facility visiting hours. Attorneys and their representatives should be advised of the times when inmates are eating meals and/or count times, and should be discouraged from arriving at these times. Advanced requests for after-hour, holiday, or weekend legal visits, based on special circumstances, shall be considered on a case-by-case basis.
(d) In general, all legal visits shall be contact visits. The superintendent must consult with counsel's office prior to enforcing the suspension of an inmate's contact visitation privileges during a legal visit with an attorney or approved legal representative. Regular procedures apply to the suspension of an inmate's contact visitation privileges with attorney's authorized representatives.
(e) If an attorney or representative requests to see a large number of inmates together, reasonable efforts shall be made to accommodate the request. Subject to considerations of safety, security and good order of the facility and the legal necessity for such a visit, a limited number of inmates may he allowed to meet simultaneously with an attorney, approved legal representative or authorized representative.
(f) Legal materials may be exchanged during a legal visit and may be left with an inmate by an attorney or representative subject to inspection for contraband. The intention to leave legal materials with the inmate shall be communicated by the attorney or representative to the visiting room correction officer. These procedures shall also be followed if an inmate wishes to leave legal materials with an attorney or representative. The inspection shall be done in the presence of the attorney and the inmate. The content of such materials may not be read during the inspection. If contraband is found, all parts of the materials shall be forwarded directly to the superintendent without further inspection, and a report from the person inspecting the materials shall detail the circumstances. In the event that the legal materials to be exchanged are voluminous, the facility may either
(1) conduct an inspection of the legal materials in the package room at the conclusion of the visit provided that the removal of the legal materials from the visiting room and inspection in the package room can be done in the presence of the inmate unless both the inmate and the attorney or representative consent to such inspection out of the presence of the inmate, or
(2) have a supply of blank envelopes available in the visiting room into which the legal materials can be placed and sealed for subsequent reopening and inspection in the presence of the inmate consistent with the procedures for handling legal mail set forth in Part 721 of this Title, “Privileged Correspondence.”
(g) In emergency situations, or when a substantial threat exists to the safety, security, or operations of the facility, or to the visiting attorney or representative, legal visits may be suspended. This is to be done for the duration necessary to ensure the safety and security of the facility and of the visitor.
(h) Nothing in this Part is to be construed to countermand procedures as found in Part 200 of this Title and departmental directives related to entrance rules and procedures, searches, control of contraband, visiting room protocol and visitor penalties (termination, suspension or permanent revocation) for misconduct.
(i) An inmate has the right to attend and the right to refuse any legal visit. Any refusal must be in writing and signed by the inmate in duplicate; one copy to be given to the attorney requesting the legal visit and the other copy to be placed in the inmate's file. When an inmate refuses a legal visit and refuses to sign such a statement, the refusal shall be documented and witnessed by two department employees.
(j) The superintendent shall designate an area for legal visits. Such area should ensure the confidentiality of all communications during the visit.
See Appendix in the back of this issue.
Text of proposed rule and any required statements and analyses may be obtained from:
Anthony J. Annucci, Deputy Commissioner and Counsel, Department of Correctional Services, Bldg. 2, State Campus, Albany, NY 12226-2050, (518) 485-9613, e-mail: [email protected]
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
Regulatory Impact Statement
Statutory Authority:
Section 112 of the Correction Law assigns to the commissioner of correction the powers and duties of management and control of correctional facilities and inmates, and the responsibility to make rules and regulations for the government of correctional facilities.
Section 146 of the Correction Law requires the commissioner to promulgate regulations governing visits by persons not otherwise authorized by law.
Legislative Objective:
The legislature intended that the commissioner promulgate regulations, consistent with Correction Law, to ensure that inmates have access to their legal counsel and to provide uniform procedures for visits between inmates and legal representatives.
Needs and Benefits:
This proposed rule mirrors a long-existing departmental directive which provides a uniform procedure for inmates and their legal representatives to have confidential visits and exchange legal materials. Inasmuch as visiting legal representatives are members of the public, it is appropriate to file these procedures as public documents.
Costs:
a. To State government: None anticipated.
b. To local governments: None. The proposed amendment does not apply to local governments.
c. Costs to private regulated parties: None.
d. Costs to the regulating agency for implementation and continued administration of the rule:
(i) Initial expenses: None.
(ii) Annual cost: None.
Paperwork:
a. New reporting or application forms: None.
b. Additions to existing reporting or application forms: None.
c. New or addition record keeping that will be required of the regulated party to comply with the rule or prove compliance with the rule: None.
Local Government Mandates:
There are no new mandates imposed upon local governments by this proposal. The proposed amendment does not apply to local governments.
Duplication:
This proposed amendment does not duplicate any existing State or Federal requirement.
Alternatives:
The Department has successfully integrated procedures for confidential visits between inmates and their legal representatives, beginning with an internal directive in 1980. No alternative procedures have evolved in the recent past several years and none have been suggested.
Federal Standards:
There are no minimum standards of the Federal government for this of a similar subject area.
Compliance Schedule:
The Department of Correctional Services is expected to achieve compliance with the proposed rule immediately.
Regulatory Flexibility Analysis
A regulatory flexibility analysis is not required for this proposal since it will not impose any adverse economic impact or reporting, record keeping or other compliance requirements on small businesses or local governments. This proposal merely provides a uniform procedure for inmates and their legal representatives to have confidential visits and exchange legal materials.
Rural Area Flexibility Analysis
A rural area flexibility analysis is not required for this proposal since it will not impose any adverse economic impact or reporting, record keeping or other compliance requirements on rural areas. This proposal merely provides a uniform procedure for inmates and their legal representatives to have confidential visits and exchange legal materials.
Job Impact Statement
A job impact statement is not submitted because this proposed rule will have no adverse impact on jobs or employment opportunities. This proposal merely provides a uniform procedure for inmates and their legal representatives to have confidential visits and exchange legal materials.
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