A phone call between a prison inmate and their lawyer was recorded and shared with a prosecutor, a Maine commission was told.
Members of the Maine Commission for Indigent Legal Defense (MCILS) heard that the recording, given to a prosecutor, concerned Somerset county, but other specific details were not given. Commissioner Robert Cummins, Esq. said he was “shocked” by such a blatant breach of attorney client communications.
MCILS executive director John Pelletier, Esq. said it related to a single jail and was known because an attorney had contacted the commission on April 23. He “wanted to know the breadth of the practice because if there was going to be litigation, understanding whether it was systematic was important. We didn’t get any specific feedback that it was happening elsewhere, other than at the jail that the attorney initially brought up.”
He said the issue was discovered when the conversation was disclosed to the attorney by the prosecutor. This issue is now being litigated in the individual case.
Commissioner Roger Katz, Esq., said the situation was “abhorrent.” He added: “This is incredibly serious and really awful . . . This is obviously completely unacceptable and one of the worse things I’ve ever heard about a breach of attorney client privilege in Maine in any setting.”
“This is about as bad as I’ve heard in a long time,” said Mr. Cummins.
Commissioner Sarah Churchill, Esq. said that because private phone providers for jails record all calls by default, an attorney’s number must be listed for those calls to be opted out from any recording. A second issue is whether the jail turns over any recording, if one is made because a number is not registered, to a prosecutor – which she said is “rare.” Some jails provide a dedicated line for calls to attorneys to prevent this problem.
She said that in her own practice, because the default recording is a long-standing issue, she limited telephone conversations with clients to hearing dates and arrangements for in-person attorney-client meetings. The recordings become a particular problem when they are disseminated to prosecutors – even though the act of recording alone was serious.
In light of the changes in the way attorneys and inmates are communicating during the Covid-19 pandemic, and the way initial appearances are being conducted in court, the Commission is surveying every jail to determine how inmates are talking to their attorneys for hearings. Further inquiries about the recording issue will also be made.
News of the recording’s dissemination to a prosecutor was given at the commission's meeting held on May 5, 2020. During that meeting, held by a telephone conference, MCILS executive director Mr. Pelletier said the number of new cases and vouchers paid for April was down considerably from March. Considering the lack of routine hearings in court, this was not surprising.
The commissioners discussed how improved training for rostered attorneys was going to be financed as a deadline loomed and this could be extended. Other broader reform proposals for providing indigent criminal defense in Maine were not discussed.
The Commission’s next meeting, which will also be held by telephone, will be held on Wednesday June 3 at 8am.
UPDATE: More details have been reported on this that were known within the legal community but were not disclosed outside it. This initial report kept strictly to facts in the public record. However, it is good that this issue is getting the attention it deserves.