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UPDATED: Legal Action Explored Over Attorney-Client Recordings of Inmates

UPDATED: Legal action and new legislation is being explored after a state commission found that at least a thousand confidential calls between Maine inmates and their attorneys were recorded in just three of the state’s sixteen counties.

The Maine Commission on Indigent Legal Services (MCILS) has been investigating the extent of the problem since it emerged that a recording at Somerset County Jail in Madison was passed to the prosecutor and the defense attorney involved was alerted. That lone incident caused an uproar when it was discussed in May.

Then more cases emerged after attorneys taking assigned cases across the state were asked if the same thing had happened. This was discussed by commissioners last month.

According to the latest research by MCILS, given in the reports for the July 7 meeting of commissioners, in Androscoggin county out of 1,273 inmate calls to attorneys, 267 were recorded. In Aroostook, of 982 calls, 678 were recorded. In Franklin county, out 148 calls, 55 were recorded. The period covered the amount of time calls have been stored by the private telephone providers involved, generally between six months and a year. These figures were given after Freedom of Access Act (FOAA) requests to individual counties.

In Somerset county, the Commission discovered that calls between attorneys and inmates have been recorded and subsequently erased, but no details were given about numbers.

Equally remarkable is that many counties simply refused to answer the FOAA requests made by the commission. MCILS has the option of going to court to litigate this issue to get the information. The most heavily populated counties, Cumberland and York, have both issued denials of the FOAA requests by MCILS.

John Pelletier Esq., executive director of MCILS, told commissioners in his report: “Aroostook and Franklin Counties have been asked to block access to the recorded calls between inmates and attorneys. Androscoggin County has reported that the recorded calls to attorney phone numbers have been erased.”

He added: “I will also work with the jails to determine whether the recorded calls to attorney phone numbers have been previously accessed for any reason.”

In an email to the commissioners in June, Mr. Pelletier said: “Most other counties have responded with what look like “pro forma” initial denials of FOAA requests. In one case, the response came directly from an attorney representing three counties. Others came from jail staff, but were obviously written by counsel. At this time, I am working with two attorneys who represent many, but not all of the counties.”

Calls are recorded as a matter of default by private companies who provide phone services to inmates, often at high cost for individual calls by the prisoner. Unless a jail is proactive, the only way calls between client and attorney are not recorded are when either an attorney or a prisoner gives the number of the attorney to these private providers to ‘opt out’ of this default.

MCILS has since given the telephone numbers of all rostered attorneys to the private telephone providers who oversee systems in Maine’s jails because forcing counsel to do it was “too burdensome” on the individual attorneys.

During the July 7 meeting, held by telephone, commissioner Robert Cummins, Esq. called the situation "mind-boggling" and felt it was almost inevitable that prosecutors and law enforcement had accessed these recordings. He said the practice should be stopped immediately.

Commissioners discussed ways to enact legislation in Maine to change the burden of preventing any recording of such calls from attorneys and inmates (who have to disclose that the telephone numbers of attorneys), to the State, and county jails, to prohibit any recording, but also prohibit access by others. There could also be penalties for a knowing violation of a recording ban. This proposal to recommend legislation was the subject of a motion that was passed unanimously.

Commissioners also did not rule out the possibility of seeking an injunction (a temporary restraining order) through litigation against the private telephone providers. This could be decided within the next week during a special meeting, pending research on the legal issues.

Commissioner Sarah Churchill, Esq., said a legislative fix was "absolutely necessary," and that there should be a confidential area where inmates can communicate privately, outside of the earshot of other prisoners. She also wanted other forms of electronic communications to be protected. This latter proposal was also incorporated into the commission's plan to recommend a statute to the legislature.


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