IID

PO Box 370747
Miami, FL 33137
305.358.2081 – Fax 305.358.0910
www.floridajusticeinstitute.org

FLORIDA
JUSTICE

INSTITUTE
>--------------------------May 17, 2022

Via Email
Office of the General Counsel
Attn. FDC Rule Correspondence
501 South Calhoun Street
Tallahassee, Florida 32399
FDCRuleCorrespondence@fdc.myflorida.com
Re:

Objections to Form DC6-20001 Associated with Rule 33-602.205

To Whom It May Concern:
We are writing regarding Form DC6-20001 entitled “Attorney Request for Unmonitored Phone
Call with Inmate,” which was apparently created to implement the provisions of the amendments
to Rule 33-602.205 concerning unmonitored attorney calls. We are concerned that the form was
released to the public well after the text of the rule was adopted, does not accurately reflect the
requirements of the rule, requires attorneys and incarcerated people to unnecessarily disclose
sensitive information, and does not permit nonprofit organizations to exercise their constitutional
right to inform people about their legal rights. While we appreciate the revisions to the rule that
were made following our initial comments, we believe the Form will still interfere with inmates’
ability to contact attorneys.
First, the Form was not available at the time of the public hearing, and was not released to the
public until well after the final Rule language was announced, thereby preventing the public from
commenting on it. The version of the proposed rule with the amendments to the attorney call
provisions was published on December 10, 2021. On January 31, 2022, we submitted a letter
outlining our objections to that version. A public hearing was held on February 18, 2022. On
March 10, 2022, a new version of the rule was published. If the form existed at that point, it was
not included in any of the public notices about the rule change. It was not until April 27, 2022,
when the online Florida Rules system announced that the rule was finalized, that the proposed
Form DC6-20001 was publicly announced. Because the Form was not available at the time our
comments were submitted and the public hearing occurred, the public was not given the
opportunity to voice any objections to it.
Second, the Form is not consistent with the Rule, as it imposes additional substantive requirements
for attorney calls that do not appear in the Rule. The only requirement in the Rule for an attorneyinitiated call is that it be “limited to those which are necessary and cannot reasonably be
accomplished through other available means of communication.” F.A.C. 33-602.205(3)(a).
However, the Form imposes additional substantive requirements—namely, an attorney can only
initiate a call if the attorney 1) already represents the inmate, 2) is seeking the call upon request of
a third party for potential representation, or 3) is seeking the call because the inmate is a potential
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witness to a legal proceeding which must be identified. These requirements appear nowhere in
the Rule. When we reviewed the proposed changes to the Rule, we understood that the only
substantive limitations would be those that appeared in the text, and that the Form would be merely
ministerial. But the Form goes well beyond that, imposing additional substantive requirements
that we were not aware of.
Third, the requirement to disclose whether the attorney represents the inmate and the name of the
legal proceeding to which the call pertains risks exposing sensitive, confidential, and potentially
privileged information; and does not allow an attorney to conduct an adequate pre-filing
investigation before agreeing to a representation. Many times, the relevant legal proceeding is one
in which the Florida Department of Corrections—or an FDC staff member, officer, or medical
provider—is a defendant. For inmates in confinement, one of those defendants may have to escort
the inmate to and from the call. Requiring the inmate and attorney to disclose this information to
the FDC—which then becomes part of the inmate’s public file—is unnecessary, intrusive, and puts
the inmate at risk of retaliation, thus frustrating the truth-seeking process of the legal system.
Moreover, because attorneys have to disclose the name of the pending legal proceeding, it would
appear that attorneys can only speak to witnesses if a legal proceeding has already commenced.
But in many instances an attorney must speak to potential witnesses before filing a case to ensure
it has sufficient factual support—in fact, this prefiling investigation may be required by ethical
rules.
Finally, the Form does not appear to permit attorneys working for nonprofit organizations to speak
to inmates to inform them of their legal rights unless the attorney has already been contacted or a
legal proceeding is underway. But nonprofit attorneys are permitted to contact potential clients
without a request. The relevant Florida Bar Rules prohibit solicitation only “when a significant
motive for the lawyer’s doing so is the lawyer’s pecuniary gain.” Rule 4-7.18(a)(1), Rules
Regulating the Florida Bar. Nonprofit attorneys seeking to inform people of their legal rights are
generally not doing so for pecuniary gain. Moreover, even if the conduct were prohibited by Bar
rules, nonprofit organizations have a constitutional right to solicit incarcerated clients to inform
them of their legal rights. See Nat'l Ass'n for Advancement of Colored People v. Button, 371 U.S.
415 (1963); In re Primus, 436 U.S. 412 (1978); Jean v. Nelson, 711 F.2d 1455, 1508–09 (11th Cir.
1983), on reh’g, 727 F.2d 957 (11th Cir. 1984), aff’d, 472 U.S. 846 (1985).
We understand the FDC has significant leeway in how to administer its rules; therefore, we are not
requesting that the form be rejected outright. Rather, we recommend the following limited revision
of the third check box on the current form:
□ I seek to speak to the above-named inmate because the inmate is a potential party in, or witness who may
be relevant to, a pending or potential legal proceeding. (Please provide case name, docket number, and
court.)

This revision will permit attorneys to initiate unmonitored calls to potential witnesses even if there
is no currently pending case, and accordingly removes the requirement to provide the case name
to avoid disclosure of that information. We believe this revision strikes an appropriate balance
between FDC’s need to regulate its facilities and the constitutional rights of incarcerated people
and nonprofit organizations seeking to assist them.
Please let us know promptly whether the FDC will be amending the Form. We are happy to discuss
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any of the above at your convenience.
Best regards,
Florida Justice Institute
Florida Legal Services
Carlos J. Martinez, Public Defender, Eleventh Judicial Circuit of Florida
Human Rights Defense Center
Florida Cares Charity Corp.
Innocence Project of Florida
Southern Poverty Law Center

Cc:
Amy Matlock, Assistant General Counsel, Florida Department of Corrections
Sharon Jones, Chief Attorney, Joint Administrative Procedures Committee

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