10. Prohibit Restrictions on Right to Counsel

The following sample motion to prohibit restrictions on right to counsel must be properly formatted with header information, line numbers, page numbers, etc. before being used in any court.

A motion such as this is especially important if a defendant has been denied confidential communications with his attorney.  Effective representation requires effective communication, and those communications need to be confidential.



TO THE COURT, THE KERN COUNTY SHERIFF, AND COUNTY COUNSEL: PLEASE TAKE NOTICE that at the date and time indicated above, or as soon thereafter as the matter can be heard in the above entitled court, the defendant will move the court for an order directing the Sheriff of Kern County to remove the restrictions on the defendant’s right to communicate confidentially with, and have access to, his counsel.

This motion will be made on the grounds that unless such private communications are guaranteed, the defendant will be deprived of the right to counsel under Article I, §15 of the California Constitution and the Sixth and Fourteenth Amendments to the United States Constitution.

This motion will be based on this notice of motion, on the attached declaration and memorandum of points and authorities served and filed herewith, on such supplemental memoranda of points and authorities as may hereafter be filed with the court or stated orally at the conclusion of the hearing on the motion, on all the papers and records on file in this action, and on such oral documentary evidence as may be presented at the hearing of the motion.


By Elliot Magnus,
Attorney for Douglass Duhan



By this motion, Defendant requests an order that Defendant shall be allowed unpaid, unmonitored telephone calls to his attorney and other persons designated by counsel to assist in the defense, which includes calls to the private investigator and paralegal assisting on this case.



The right of access to counsel is an essential component of the right of access to the courts. (Bounds v. Smith (1977) 430 U.S. 817).

This right is possessed not only by convicted prisoners, but by pretrial detainees who are jailed pending trial. (U.S. ex rel. George v. Lane (7th Cir. 1981) 718 F. 2nd 226, 230; Lock v. Jenkins (1981) 641 F. 2nd 488, 489.

Starting “from the premise that telephone communication is essential for inmate contact with attorneys,” the court in In re Grimes (1989) 208 Cal. App. 3rd 1175 upheld a trial court order that the local jail must provide inmates a cost-free telephone line to the public defender’s office. The court reasoned that the use of a collect-calls only system “unreasonably restricts communications between inmates at the jail and their attorneys.”

Jail regulations restricting pretrial detainees’ contact with their attorneys are unconstitutional where they “unjustifiably obstruct the availability of professional representation.” (Benjamin v. Fraser (2nd Cir. 2001) 264 F. 3rd 175, 178).

“[P]rison administrators are in the best position to control inmates but this control cannot violate statutory or constitutional right (citation) Thus, the courts’ traditional deference to administrative expertise in prison matters does not foreclose judicial intervention to remedy statutory or constitutional violations.” (In re Grimes (1989) 208 Cal. App. 3rd 1175).

An inmate is entitled to “confidential consultation with attorneys” (15 CCR §1068). An in-custody defendant must be allowed “reasonable access to a telephone” (15 CCR §1067). Confidentiality rules apply not only to the attorney, but also to private investigators, paralegals, attorney employees, and other persons assisting in the defense (15 CCR §3178).

Jail procedures and regulations must be implemented so as not to invalidate a constitutional right. The standards set forth in Title 15 “constitute contemporary notions of decency and are advisory in nature,” but the courts do not rely blindly on these standards as fixing constitutional minima. (Inmates of the Riverside County Jail v. Clark (1983) 144 Cal. App. 3rd 850, 860).

Defendant is allowed telephone calls now, so there is obviously no security or penological issue regarding defendant’s use of the telephone. Defendant has been deemed to be indigent, and he receives the services of counsel at no cost to him.

Therefore, there appears to be no logical or legal reason to charge defendant for calls to the defense team or in having those calls monitored.