New Maine Law Protects Atty-Client Privilege In Jail Calls

By Marco Poggio | June 23, 2023, 7:03 PM EDT ·

A white man with brown hair wearing a gray suit, white shirt and striped tie speaks behind a lectern in a large room

A phone call between criminal defense attorney Jeremy Pratt, pictured here arguing before the Maine Supreme Judicial Court, and one of his incarcerated clients was among a slew of privileged conversations authorities improperly intercepted from state correctional facilities. A new bill passed in the state this week aims at addressing the problem. (Photo by Shawn Patrick Ouellette/Portland Press Herald via Getty Images)

One day last year, criminal defense attorney Jeremy Pratt of Camden, Maine, found out that prosecutors had listened in on one of his phone calls with a jailed client.

An assistant state attorney general called Pratt to tell him that a batch of intercepted phone calls that had been provided to authorities included one that Pratt had with a client, an inmate at Somerset County Jail, who Pratt was representing in a drug case.

The fact that the recording, which is supposed to be confidential under attorney-client privilege, ended up in the hands of Maine's chief prosecutor was a cause for alarm, Pratt said.

And his concern only grew when an attorney friend told him that several of the friend's own phone calls with a client at the same Madison, Maine, facility had also been intercepted by jail officials.

"It just seemed striking to me," Pratt told Law360. "What are the odds that we had the only two clients whose phone calls were listened to in that jail?"

It turned out that Pratt's experience and that of his colleague were part of a widespread practice in Maine. Nearly 1,000 of supposedly confidential phone calls between defendants and their lawyers were eavesdropped on in a one-year period between June 2019 and May 2020, in at least four county jails, according to a database compiled by The Maine Monitor, a local newspaper that investigated the issue last year.

In some cases, intercepted calls were turned over to prosecutors, which defense lawyers said gave the prosecutors improper insight into the defendants' legal strategies during the pretrial phases of their cases, when plea bargaining most often takes place.

"It's clear that this is a statewide problem," Matthew D. Morgan, an attorney at McKee Law in Augusta, Maine, told Law360. "A lot of people, myself included, had sent our numbers into these jails telling them, 'Don't record these phone calls.' They still were."

A high-profile incident, however, recently pushed the issue of privileged communication further into the public eye, triggering backlash that has spurred legislative action to shore up attorney-client privilege for incarcerated individuals in the state. In August, a judge refused to dismiss a case against a defendant charged with murder even after the Maine State Police admitted to listening to phone calls the defendant, Bobby Nightingale, made to his lawyer from jail.

On Thursday, Maine legislators voted to approve Legislative Document 1603, a bill that will require the state to create a weekly registry of names, telephone numbers and other contact information for attorneys representing incarcerated individuals. Any calls to or from those numbers would automatically be considered privileged. In addition, the law would require the state to train corrections staff about privileged communications and establish a written policy for the protection of confidential calls.

In addition, the bill will make any intercepted attorney-client communications inadmissible in criminal proceedings. It would also disqualify officials who improperly intercept a defendant's phone calls from participating in criminal proceedings involving that defendant if they had previously been given notice the defendant was on the phone with their attorney.

Gov. Janet Mills, a Democrat, has 10 days to sign the bill into law. She is expected to do so, given the bipartisan support the bill has received, advocates said. The bill passed unanimously in both the state's Senate and House of Representatives.

"All people accused of a crime in the United States have the same fundamental constitutional protections, but that has not been the case in Maine," Meagan Sway, the policy director at the American Civil Liberties Union of Maine, said in a statement. "We hope this legislation will incentivize jails and prisons to uphold their obligations under the U.S. Constitution and respect the confidentiality of conversations between people accused of crimes and their legal counsel."

Justin Andrus, a criminal defense attorney and former interim executive director of the Maine Commission on Indigent Legal Services, proposed the legislation last year and was part of a legislative committee, which included the ACLU and the Maine Association of Criminal Defense Lawyers, that worked on drafting the bill.

In an interview with Law360, Andrus said there is no evidence Maine prison officials willfully or systematically listened to privileged phone calls. Still, it is clear that hundreds of calls were recorded and later accessed by officials in certain cases.

Inmate calls are typically recorded and filed into archives that law enforcement agencies and prison officials can later access in the event a person is believed to be engaged in witness tampering or other forms of harassment.

"Attorney calls should never be recorded. And so there needs to be an effective process to ensure that they're not recorded," Andrus said. "If they're recorded and then accessed, there needs to be a process for reporting that breach so that clients are not at risk."

A spokesperson for the Maine Department of Corrections declined to comment.

Across the country, incarcerated people are required to use proprietary phone systems that jails and prisons provide through private contractors to make calls. The companies offer accounting and payment processing systems for the calls, and can block inmates from dialing numbers they may not be allowed to call, for instance as a result of court order. They also have recording capabilities.

Advocates in Maine say those capabilities were used to the detriment of inmates' rights, some of whom were incarcerated pretrial and were therefore still legally innocent.

"People who are awaiting trial have to be able to speak with their attorney in order to prepare for trial or decide whether they're going to accept a plea or prepare for hearings," Zach Heiden of the ACLU told Law360. "But it turned out these systems were not working as they were supposed to. And they were recording, in some cases, calls between people in jail and their attorneys."

In some cases, privileged conversations were sent to local prosecutors or the state attorney general's office, Heiden said.

"The act of recording inhibits people from having a free exchange of information, but then turning that over to the people that are engaging in the prosecution really destroys the ability to have a meaningful assistance of counsel," he said.

Since its 1963 decision in Gideon v. Wainwright , the U.S. Supreme Court has recognized access to counsel as among the most important of the rights guaranteed to citizens under the Sixth Amendment.

While testifying before Maine lawmakers in support of privilege protections in April, ACLU officials argued confidentiality in inmate calls was crucial to ensuring a person's constitutional right to an effective criminal defense.

"For too many people in Maine, access to private conversations with their defense attorney is treated as a privilege for the few instead of a constitutional right for all," Sway, the ACLU's policy director in Maine, told lawmakers.

According to The Monitor's investigation, which Sway mentioned during her testimony, jails in six counties across the state recorded nearly 1,000 phone calls jailed defendants made to their lawyers between June 2019 and May 2020.

The ACLU stressed the need for government officials to be held accountable for violating the rights of defendants to speak to their attorneys in confidence. The organization showed strong support in particular for the provisions barring intercepted attorney-client communications from being used as evidence in criminal proceedings.

"The whole criminal legal system is premised on the idea that people are presumed innocent, and they get a chance to be represented by an attorney and protect their innocence," Heiden said. "Whatever other interests the jail has — in who's talking to whom on the phone — are not as important as that interest."

Above and beyond more strict privilege protections between attorneys and clients who are incarcerated, the advocates behind the bill originally sought a way to criminally prosecute breaches of attorney-client privilege, including by police officers and prosecutors. While the doctrine of qualified immunity generally shields government officials from civil suits, it does not protect them when they are charged with crimes.

An initial version of the bill, which McKee Law's Morgan said "had a little more teeth to it," included a provision that would have made it a crime for anyone to intentionally eavesdrop or record a privileged call. That language was subsequently dropped, however.

"We think that that was the appropriate way to protect this," said Morgan, who also is a board member of the Maine Association of Criminal Defense Lawyers. "The Legislature has removed that — and so be it."

--Editing by Lakshna Mehta.

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