New bill would prohibit confidential attorney-client recording in county jails
State lawmakers said they were shocked to learn that a handful of Maine jails have recorded what were supposed to be confidential conversations between incarcerated clients and their attorneys, news that came from an extensive report from the Maine Monitor earlier this year.
Judiciary Committee Co-Chairman Thom Harnett, D-Gardiner, has a new bill designed to stop the practice, but there isn't consensus on the best way to do it.
The measure, known as LD 1946, would prohibit recording, monitoring, disseminating or divulging communication between clients and their attorneys, and it establishes civil penalties for those who break the law. County jails would have to maintain call logs between clients and their counsel, and unauthorized eavesdropping would become a class-C crime under the bill.
Justin Andrus, executive director of the Maine Commission on Indigent Legal Services, described the measure as "absolutely necessary."
"This is a plague. This is not an occasional thing," he told members of the judiciary committee at Monday's public hearing on the proposed legislation. "This is thousands of recordings if we were to look at all the jails for more than one year. This is not something that's happening on an ad hoc basis. This is not something that's happening infrequently, and this is not something that's harmless."
Andrus says clients are deprived of their sixth amendment rights if they can't trust that calls with their attorney are truly confidential. It's not enough to prohibit attorneys from using the information from a recorded phone call in a trial, he said.
But District Attorney Andrew Robinson, who testified on behalf of the Maine Prosecutors Association, said the bill as written is too broad. The recording of attorney-client calls is often accidental, he said.
"Everybody who calls into the jail, their calls are recorded, except there's supposed to be a system where counsel provides their phone numbers to the jail, it's entered into the computer and then it's not supposed to record from that point going forward," Robinson said. "I think a lot of the concern here stems from human error on the part of the jail maybe not getting the numbers into the system, and
When conversations between attorneys and their clients are recorded, Robinson said prosecutors don't often review them. He suggested lawmakers change the bill so that it more specifically targets those who have actually listened to the recordings.