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New Maine commission begins probe of attorney-client jail recordings

In this March 4, 2009, file photo, a lawyer of the day talks to his client in a Bangor courtroom.
Bridget Brown
In this March 4, 2009, file photo, a lawyer of the day talks to his client in a Bangor courtroom.

A special commission is reviewing whether residents in state prisons, county jails and other correctional facilities in Maine can confidentially communicate with their attorneys as the constitution requires.

Communication between a defendant and his or her attorney is supposed to be confidential.

The panel was created by the legislature after reporting by the Maine Monitor documented nearly 1,000 attorney-client phone calls were recorded at four jails within a year.

The Commission to Ensure Constitutionally Adequate Contact with Counsel met for the first time Wednesday.

Justin Andrus, executive director of the Maine Commission on Indigent Legal Services, said it's unclear how many calls have been recorded across the state, and how many recordings were made available to police or prosecutors.

But the practice has created a chilling effect for defendants seeking meaningful communication with their attorneys, he said.

"That problem is then exacerbated by the reality of practice in Maine today... where because people's practices have become so geographically diverse, the practical ability to get into facilities, even where facilities are open again, is impossible," Andrus said.

Andrus was one of a few commission members who recalled personal experiences where their calls with incarcerated clients recorded.

"We don't want these recordings," said Kathy Slattery, district attorney for York County and a member of the Maine Prosecutors Association. "We do not want access to these recordings, and we all have policies in place that trigger certain actions that must be taken when these recordings are inadvertently given to us."

Because Maine depends entirely on private practice attorneys to represent defendants who can't afford their own, they often rely on phone or video calls to speak with clients who might be spread across a large geographic area.

Sarah Branch, who sits on the board for the Maine Association of Criminal Defense Lawyers, said some federal, state and county facilities in Maine don't have enough staff to help facilitate those attorney-client meetings.

"When it impacts my access to my clients, that can be extremely problematic when they say we don't have the staff to facilitate this meeting," she said.

The panel's members said they want to know how many attorney-client calls have been recorded in jails across Maine, and they plan to offer recommendations on how the state can ensure attorney-client communications are confidential.

A report is due to the legislature in early November.