DELHI – Complaints are surfacing from defense attorneys in Delaware County, who allege the county jail/sheriff’s office has violated attorney-client confidentiality by monitoring and recording privileged conversations. Delaware County Public Defender Joseph Ermeti is concerned that those actions may jeopardize the fairness of local criminal proceedings, with consequences that disproportionately affect defendants who can’t afford bail.
Ermeti acknowledged the Delaware County Sheriff’s policy, which formally bars eavesdropping or recording calls between attorneys and their incarcerated clients. However, he believes this policy was violated. He initially raised concerns with jail officials after suspecting the district attorney’s office was listening to privileged calls.
“I notified the major at the jail that I believed that the district attorney was listening in on attorney/client telephone calls,” Ermeti said. “After I made the major aware of the issue he asked me to provide him with all attorney telephone numbers so the calls involving those numbers would not be recorded.”
However, Ermeti still believes there is an issue with compromised defendant/inmate privacy.
District Attorney Shawn Smith denies any unauthorized listening. Smith, however, does request and receive all emails, text messages and recorded telephone conversations generated by inmate/defendant accounts, he said, as part of “discovery” or evidence collection in preparing a criminal case for court action.
For Ermeti, the stakes are high for his clients who remain incarcerated pretrial due to what he sees as excessive bail amounts imposed by Delaware County judges.
“The bail in this county is much higher than in neighboring counties,” Ermeti stated. “Whether you see this as good or bad, the practical effect is that many of our defendants are kept in jail because they cannot make bail.”
Ermeti argues that high bail keeps many low-income defendants confined in a setting where they’re particularly vulnerable to evidence collection tactics, both through monitored communications and accusations of admissions made to “jailhouse informants.”
Those admissions, Ermeti said, “... are, many times, lies.”
All information gathered at the jail is provided to the district attorney to be used against a defendant, Ermeti continued.
“Those that can afford to make bail do not have to contend with the jailhouse evidence collection techniques that the poor do.” Ermeti said. “The same is true for communications with your lawyer. If you are in jail you run the risk that someone may be listening in on your communication. If you can make bail, you avoid this ‘fishbowl’ of constant monitoring,” Ermeti said. “But our indigent clients must live under constant surveillance, and any conversation could potentially be used against them if they choose to exercise their constitutional right to a trial.”
Ermeti clarified that after speaking with the sheriff’s major about the eavesdropping concerns, he believes the situation was remedied.
However, Ermeti is not the only defense attorney to complain about the issue of eavesdropping. Privately retained criminal defense attorney Kurt Haas of Albany complained to County Court Judge John Hubbard Monday, Oct. 28 during a bail hearing that the recording of conversations was impeding his representation of his client who is currently in jail without bail.
Assistant Public Defender Andrew VanBuren also complained to Hubbard in court earlier this year that the district attorney’s office was eavesdropping on a conversation he had with a defendant/client in a waiting room in the Delaware County Courthouse.
VanBuren criticized the jail’s policy of requiring attorneys to register their phone numbers to prevent calls with clients from being recorded, stating it’s unreasonable to expect lawyers to know or follow this rule, especially those from outside the area. Attorney-client communication is “sacred ground,” VanBuren said, and should remain private. He emphasized that failure to log a telephone number shouldn’t permit call interception. VanBuren stated “a separate private unrecorded telephone line” is necessary for confidential discussions and accuses Smith of unethical behavior for reportedly eavesdropping on these calls, calling it “underhanded” and “a disqualifier” for the office of district attorney.
“Everything Ermeti and VanBuren stated is 100% false,” Smith said in response to allegations of eavesdropping or listening to recorded conversations between an inmate and their attorney. “They [Ermeti and VanBuren] have a long documented history of lying, and this is just another example of that.”
In New York, attorney-client privilege protects confidential communications between a defense attorney and their client, making it illegal to eavesdrop on those conversations. This privilege is essential to the Sixth Amendment, which guarantees the right to a fair trial and effective legal counsel, allowing clients to speak openly with their attorneys. In criminal cases, confidentiality is especially critical. Breaches, such as unauthorized eavesdropping, can undermine a defense by potentially compromising a fair trial. Recording or eavesdropping and sharing privileged conversations can also undermine the integrity of the justice system.
Delaware County Sheriff Craig DuMond clarified that while all inmate phone calls are recorded, conversations between inmates and their attorneys are not intentionally recorded, as they are confidential and privileged. Attorneys are responsible for registering their phone numbers with the jail’s system to prevent these calls from being inadvertently recorded. Attorneys are advised of the requirement from the start. If an attorney doesn’t register a number or calls from an unregistered line, the call may be recorded by the system. In such cases, if an attorney contacts the jail it can flag the call and it will be deleted, DuMond said.
In a November 2023 recorded Zoom presentation on a potential opioid diversion court initiative, District Attorney Shawn Smith stated that he listens to phone calls made by inmates. The meeting included representatives from the Office of Court Administration and Delaware County Court Judge Gary Rosa.
“I listen to the jail phone calls who [sic] tell their attorney, ‘Oh, give me rehab so we can beat this case, or whatever,’” Smith stated in the meeting.
Despite that statement, Smith says he has “never once” received a recording from the jail of an attorney speaking with an inmate/defendant. Smith also clarified that when an inmate/defendant places a telephone call to anyone they are advised numerous times that the call is being recorded.
It is widely known, all agreed, that conversations inmates/defendants have with other inmates or jail staff and all written communications such as emails or texts, are disclosed to the district attorney’s office. For instance, Smith said, a defendant/inmate may tell another inmate that the district attorney’s office is offering a prison sentence to resolve a criminal charge, but their defense attorney is instead advocating for a sentence of treatment court and sells the idea of treatment court to a defendant as easy to complete.
Those types of conversations are relayed to the district attorney’s office who in turn can use the information to further prosecute or negotiate a case.
As the controversy over attorney-client confidentiality in Delaware County’s jail unfolds, the balance between law enforcement and protecting fundamental rights remains contested. Defense attorneys like Ermeti emphasize that pretrial inmates — particularly those held on high bail — risk losing their constitutionally guaranteed right to a fair defense because of confidentially breaches. Meanwhile, DuMond and Smith continue to defend the jail’s practices, insisting that precautions are in place to avoid recording/sharing privileged conversations.
