Of course if they listened to your conversation with your attorney the "fruit of the poisonous tree" doctrine would apply, but could you actually sue them if they did it? Do you have a right to privacy when interacting with your attorney?

1 Answer 1


Yes, one has a right to privacy in such a case

This right is clearly established, and so an officer or other government official or employee who listened in or authorized another to listen in could be personally sued under 42 US Code § 1983 often kn own simply as "section 1983). That law provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

The current version of section 1983 dates to 1979, but its hiostory goes much further back. This law derives from the Enforcement Act of 1871 also known as the Ku Klux Klan Act, Third Enforcement Act, Third Ku Klux Klan Act, Civil Rights Act of 1871, or the Force Act of 1871. According to the Wikipedia article about it:

The act was the last of three Enforcement Acts passed by the United States Congress from 1870 to 1871 during the Reconstruction Era to combat attacks upon the suffrage rights of African Americans. The statute has been subject to only minor changes since then, but has been the subject of voluminous interpretation by courts.

According to the same article, Section 1983:

is the most widely used civil rights enforcement statute, allowing people to sue in civil court over civil rights.

According to the same article:

A §1983 claim requires according to the United States Supreme Court in Adickes v. S. H. Kress & Co. (1970) two elements for recovery: (1) the plaintiff must prove that the defendant has deprived him of a right secured by the, "constitution and laws," of the US, and (2) the plaintiff must show that the defendant deprived him of this constitutional right 'under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory' (under color of law)

  • Are you using "clearly established" in the colloquial sense? Because I doubt this is clearly established in the 1983 sense.
    – bdb484
    May 17, 2022 at 22:55
  • I am using that in the 1983 sense, sufficiently established to defeat any claim of Qualifies Immunity. But I may need to find some case law on that. May 17, 2022 at 23:04
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    @bdb484 The right to have law enforcement not intentionally eves drop on attorney-client privileged communications is well established for 1983 purposes (although I'd also have to look up chapter and verse authority on point). It would defeat qualified immunity. One could imagine gray areas, however, where law enforcement inadvertently or unintentionally overhears a privileged communication, for example due to thin walls and a lawyer and client with loud voices, since 1983 only covers intentional violations of federal law and the constitution, or edge cases where qualified immunity applies.
    – ohwilleke
    May 18, 2022 at 15:11
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    I think this highlights the issue I'm trying to flag. We keep saying it's clearly established because it's obviously unconstitutional even without precedent, but that's the colloquial sense. Saying it's clearly established without knowing whether there's another case that is factually and legally on-point is like saying you breached a contract without knowing whether there was an agreement in the first place.
    – bdb484
    May 18, 2022 at 15:51

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