Court rejects private lawyer phone consult prior to charges

DES MOINES, Iowa (AP) — Iowans have no right to a confidential telephone conversation with a lawyer prior to charges being filed, the state Supreme Court ruled Friday, dealing a blow to attorney-client privilege.

The decision came in a case involving a Milford man arrested for drunken driving at nearly 3 a.m. on Jan. 15, 2019. Matthew Sewell was confronted with the choice of losing his driver’s license or taking a breath test when he asked to talk privately with his attorney by phone. Police rejected his request and recorded the conversation, which the attorney abruptly ended when he learned it was being recorded.

Sewell took the breath test, which indicated he exceeded the level allowed by Iowa law, he was booked into jail on a drunken driving charge and later convicted. He appealed the conviction, claiming his right to an attorney under state law and the Constitution was violated.

A majority of the court concluded that the constitutional right to an attorney only applies to face-to-face meetings. The justices, in an opinion written by Edward Mansfield, said Iowa law specifies that a call to a lawyer “shall be made in the presence of the person having custody of the one arrested or restrained.” The court has said previously that the constitutional right to an attorney “does not attach prior to the initiation of a case or prosecution.”

Justice Brent Appel, the only Democratic appointee remaining on the court, disagreed. He wrote in a dissenting opinion that although Sewell had only himself to blame for his predicament, he was entitled to legal advice to help him deal with it.

“The guiding hand of counsel is crucial in permitting the arrestee to make an informed choice that is irreversible and will largely dictate whether he is convicted of a crime or loses his driver’s license,” Appel wrote.

He said courts in Minnesota, New York, Oregon, Washington and Vermont have found a constitutional right to counsel in similar situations to Sewell’s case. Six states — Alaska, Arizona, Missouri, North Carolina, North Dakota and Ohio — provide for confidential consultation with counsel in similar circumstances by statute or rule, Appel said.

Robert Rehkemper, the attorney who argued Sewell’s case before the court, said the decision means Iowans taken to a police station and not yet charged can ask to call a lawyer, but police officers can listen to everything that is said. Those wanting privacy or confidentiality must convince an attorney to meet in person, said Rehkemper, a board member of the Iowa Association of Criminal Defense Lawyers.

“It’s incredibly disappointing. It’s scary. It opens the door for just a complete disregard for the attorney-client privilege that’s supposed to form the basis of our judicial system and it just erodes it,” he said. “What boggles my mind is convicted murderers who are in prison have the right to confidential consultations with their attorneys over the phone but we’re not doing that for people who are just arrested.”

The court made it clear it allows officers to stand in the room and listen to the suspect’s side of the conversation but did not address whether it is proper for police departments to record both sides of the conversation when people talk to their lawyers by phone.