Sen. Carney bill to maintain the confidentiality of phone conversations between lawyers and their clients becomes law

AUGUSTA — A bill from Sen. Anne Carney, D-Cape Elizabeth, has become law without the Governor’s signature. LD 1603, “An Act to Implement the Recommendations of the Committee To Ensure Constitutionally Adequate Contact with Counsel,” will maintain the confidentiality of phone conversations between lawyers and their clients when the clients are defendants residing in a county or regional jail or a Department of Corrections facility.

“In the last Legislature, the Judiciary Committee struggled to find a clear policy change that would protect the confidentiality of attorney-client communications in this setting,” said Sen. Carney. “We created a study committee, hoping that forum would allow stakeholders the time to seek out additional information and understand how and why privileged calls were being recorded. I hoped the study would also provide a clear direction for legislation. That has happened. This legislation implements a consistent system that ensures attorney-client phone calls in jails and corrections facilities are not recorded.”

Both the United States Constitution and the Maine Constitution provide that criminal defendants have the right to counsel. For clients who are not held in custody or released on bail pending the outcome of their cases, confidential communication with their attorneys is a matter of simply picking up the phone or visiting the attorney’s office. However, individuals who are held in custody pending arraignment or disposition of a criminal case or those serving a sentence in a correctional facility rely on a series of administrative processes to ensure that their communications with their attorneys remain confidential.

Recently, local news stories detailed instances in which corrections workers or the prosecution listened to recordings of attorney-client calls. Concern over the extent of these encroachments of the attorney-client privilege prompted the 130th Maine legislature to consider LD 1946, “An Act to Ensure Constitutionally Adequate Contact with Counsel.” The Judiciary Committee voted in favor of an amended version of the bill, Resolve 2021, c. 182, which established the Committee to Ensure Constitutionally Adequate Contact with Counsel.

“LD 1946, An Act to Ensure Constitutionally Adequate Contact with Counsel, is necessary to ensure that consumers of indigent legal services in Maine receive the protection of the Sixth Amendment right to counsel.” wrote Justin Andrus, Esq. in testimony supporting the legislation that laid the groundwork for LD 1603. “In each specific case in which a call is recorded, a defendant is at risk that the disclosure of privileged information will lead to that person’s detriment… [T]hat person cannot receive due process. At a system level, the problem is even more serious. Clients and attorneys are afraid to communicate by phone. … Defendants are being deprived of counsel. This cannot be permitted to continue.”

This legislation establishes a consistent system and process for ensuring that attorney-client phone calls are not recorded by jails and correctional facilities.

LD 1603 goes into effect 90 days after the Legislature adjourns sine die.

###