In Re Jordan

¶1Concurring. — I join in the majority decision both as to the right of prison inmates to confidential correspondence with members of the State Bar of California and as to the conclusion that the right extends to correspondence with out-of-state attorneys with whom an *582attorney-client relationship exists. However, the majority hold only that a prisoner and his out-of-state attorney may correspond confidentially after an attorney-client relationship has been established. Implicit in the right to communicate confidentially with one’s attorney is the right to confidentiality in those communications in which a prospective client solicits representation by an attorney. Since the majority do not expressly deny the right to confidentiality in those communications in which a prisoner seeks to retain the services of an out-of-state attorney, I interpret - the holding of the majority to include such a right.

¶2The right of a prison inmate to representation by counsel1 extends to all matters, whether denominated civil or criminal, in which he retains his right of access to the courts. As the majority recognize this right exists at least as to pending criminal matters, applications for extraordinary relief, and matters related to the conditions of confinement. (See, e.g., In re Ferguson (1961) 55 Cal.2d 663 [12 Cal.Rptr. 753, 361 P.2d 417].)

¶3A prisoner’s right of access to the court for the purpose of redressing his rights necessarily includes the right to retain counsel to act for him. (In re Ferguson, supra,55 Cal.2d 663.) Censorship of communications in which the prisoner seeks to obtain counsel unreasonably erodes the right of access to the courts by restricting the ability of the prisoner to fully and frankly set forth the factual matters upon which his claim is based. (Id.., at p. 677.) Invasion of the confidential nature of the correspondence between a prisoner and an attorney whom he seeks to retain cannot be distinguished from censorship in its burden on the prisoner’s right of access to the courts. It would be naive to assume, for instance, that a prisoner who accuses institutional officials of improprieties will freely commit his charges to paper knowing that the same officials who daily supervise his every activity will read that letter. Since, as the majority acknowledges, the right to confidential communication with a retained out-of-state attorney may not be infringed, it follows that the confidentiality of prisoner communications seeking to retain out-of-state counsel also may not be infringed.

¶4Although it has been suggested that review of prisoner mail to out-of-state attorneys is necessary to insure that the correspondence relates to *583matters as to which the prisoner retains his right of access to the courts, i.e., to matters that are not purely civil litigation, it is difficult to believe that the number of such attempted purely civil communications is sufficient to warrant the restriction of confidentiality of attorney mail generally. No such objection is made with regard to correspondence addressed to California attorneys. Prisoners who are usually laymen, many of whom lack advanced education, cannot be expected to assess their claims to determine whether they are “purely civil.” If the purpose of restricting communications relevant to “purely civil” matters is to implement the civil death statute (Pen. Code, § 2600) that purpose can be adequately served by enclosing with letters addressed to counsel who have not yet been retained a notice regarding the areas in which California prison inmates lack capacity to sue.