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More Recordings Between Lawyers And Incarcerated Clients Revealed

Kennebec County Jail, Augusta

It has now emerged that four calls from prison inmates to their attorneys are known to have been recorded in Maine in recent years – with work ongoing to find the extent of the problem.

The Maine Commission on Indigent Legal Services (MCILS) has also discovered that in one jail, in-person no-contact conversations between incarcerated clients and their attorneys – adopted because of the current pandemic were also recorded in visitation facilities.

The recording of visitation facilities during attorney visits was discovered at Kennebec County Jail in Augusta. MCILS has been told that the recordings have since been deleted and recording has stopped. However, other county jails have yet to say whether they are recording attorney-client visits in similar no-contact visitation facilities. The possibility that this has happened at Cumberland County Jail in Portland is being investigated by MCILS as well.

An appeal for information on phone call recordings was made recently by MCILS to all court-appointed defense attorneys. There were two instances involving the same attorney where calls were recorded at the Two Bridges Regional Jail in Wiscasset in 2015. Another recent incident of a recorded telephone call involves Cumberland County Jail in Portland.

The concern followed news of a recording at Somerset County Jail in Madison that was passed to the prosecutor and the defense attorney involved was alerted. This caused an uproar when commissioners met last month. In all four instances, calls were recorded and then passed to prosecutors. The relevant district attorney's offices said they did not listen to the calls and alerted both defense counsel and the court.

Calls are recorded as a matter of default by private companies who provide phone services to inmates, often at high cost for individual calls to the prisoner. Often 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.

John Pelletier, Esq., executive director of MCILS, told commissioners at their June 3 meeting: “Fortunately for Maine, we did not discover a situation where the prosecutors were readily listening to these calls, using them in plea negotiations or actually litigating the admissibility of these calls in cases. That has transpired in places around the country.”

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.

Another problem being addressed is deleting any calls currently held for between six and twelve months by default by these private providers. The process to identify any recordings and make sure they are deleted is ongoing. Mr. Pelletier said the response from private providers to this request was so far “underwhelming”.

Commissioner Sarah Churchill, Esq. said the default recording was just one of many issues that needed to be addressed to protect attorney-client communications. Many inmates speak to their attorney in public spaces of jails, overheard by others, and not in private rooms. This potentially blows through any attorney-client privilege when conversations – even one part of one – is overheard.

Commissioner Roger Katz, Esq., said there should legislation to provide a statutory ban on any default recording of calls between inmates and attorneys, that confidential spaces must be provided for inmates to consult with their attorneys, and there should be no charge for calls to lawyers by inmates. Even if this was possible, any legislation would be at least a year away.


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