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STATE OF MAINE
_____
IN THE YEAR OF OUR LORD
TWO THOUSAND TWENTY-THREE
_____
S.P. 635 - L.D. 1603
An Act to Implement the Recommendations of the Committee To Ensure
Constitutionally Adequate Contact with Counsel
Be it enacted by the People of the State of Maine as follows:
PART A
Sec. A-1. 4 MRSA §1804, sub-§3, ¶N, as amended by PL 2021, c. 481, §3, is
further amended to read:
N. Develop a procedure for approving requests by counsel for authorization to file a
petition as described in section 1802, subsection 4, paragraph D; and
Sec. A-2. 4 MRSA §1804, sub-§3, ¶O, as enacted by PL 2021, c. 481, §4, is
amended to read:
O. Establish a system to audit financial requests and payments that includes the
authority to recoup payments when necessary. The commission may summon persons
and subpoena witnesses and compel their attendance, require production of evidence,
administer oaths and examine any person under oath as part of an audit. Any summons
or subpoena may be served by registered mail with return receipt. Subpoenas issued
under this paragraph may be enforced by the Superior Court.; and
Sec. A-3. 4 MRSA §1804, sub-§3, ¶P is enacted to read:
P. Develop and maintain a registry of names, telephone numbers and other contact
information for attorneys who provide legal services to persons who are incarcerated.
The commission shall on a weekly basis provide these names, telephone numbers and
other contact information to all sheriffs' offices and to the Department of Corrections.
On the Monday following transmission of the information, the sheriffs' offices and the
Department of Corrections have constructive notice that communications to and from
these attorneys by residents of jails and correctional facilities are subject to the
attorney-client privilege. The attorneys' names, telephone numbers and other contact
information are confidential.
Sec. A-4. 5 MRSA §200-N
§200-N. Confidential attorney-client communications
LAW WITHOUT
GOVERNOR'S
SIGNATURE
JULY 6, 2023
CHAPTER
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PUBLIC LAW Page 2 - 131LR2478(03)
1. Policies.
the protection of confidential attorney-client communications by employees and agents of
the Attorney General, which must include, at a minimum, processes to protect and ensure
confidentiality of attorney-client communications and processes to be followed in the event
that there is a breach of attorney-client confidentiality.
2. Training.
program for all state, county and municipal law enforcement officers and investigators
who, as part of a criminal investigation, may inadvertently hear confidential attorney-client
communications, which must include, at a minimum, practices and procedures for
protecting and ensuring confidential attorney-client communications and practices and
procedures to be followed in the event that there is a breach of attorney-client
confidentiality.
Sec. A-5. 15 MRSA §714 is enacted to read:
§714. Intercepted attorney-client communications of jail and correctional facility
residents
1. Intercepted attorney-client communications of jail and correctional facility
residents. If the sender or the recipient of an intercepted oral communication or wire
communication was, at the time the communication was made, a resident in either a jail or
an adult or juvenile correctional facility administered by the Department of Corrections and
the other party was an attorney and if the resident demonstrates that the jail or correctional
facility had actual or constructive notice at the time the communication was made of the
attorney's name and, if the communication involved the use of a telephone, the jail or
correctional facility had actual or constructive notice at the time that the communication
was made of the attorney's telephone number and the communication was made directly to
or from that telephone number:
A. The contents of the intercepted oral communication or wire communication and the
fact and circumstances of the communication are not admissible in a criminal
proceeding, including a proceeding under chapter 305-A;
B. A person who viewed or listened to the intercepted communication and did not
immediately discontinue viewing or listening to the communication as soon as the
person had sufficient information to determine that the sender or the recipient of the
communication was, at the time the communication was made, a resident in a jail or
correctional facility and the other part was an attorney, is disqualified from
participating in an investigation of the resident and from appearing as a witness in a
criminal proceeding in which the resident is a defendant, including a proceeding under
chapter 305-A; and
C. A person who viewed or listened to the intercepted communication and saw or heard
information that may be relevant to a pending or anticipated charge against the resident
or a defense the resident may assert, or may lead to the discovery of that evidence, is
disqualified from participating in the investigation of the resident and from appearing
as a witness in the pending or anticipated criminal proceeding in which the resident is
a defendant, including a subsequent proceeding under chapter 305-A on the pending or
anticipated charge. Page 3 - 131LR2478(03)
For purposes of this subsection, the inclusion of the attorney's name and telephone number
on a list transmitted by the Maine Commission on Indigent Legal Services pursuant to Title
4, section 1804, subsection 3, paragraph P to a sheriff's office or to the Department of
Corrections constitutes constructive notice to a jail in the same county as the sheriff's office
or to all correctional facilities administered by the Department of Corrections, respectively,
beginning on the Monday following the transmission.
2. Application of other law or rule. This section does not limit the applicability of
any other provision of law or of the Maine Rules of Evidence regarding the admissibility
or inadmissibility in evidence of attorney-client communications that do not meet the
requirements of this section.
Sec. A-6. 25 MRSA §2802, first ¶, as amended by PL 2019, c. 103, §1, is further
amended to read:
There is created a board of trustees for the academy consisting of 18 19 members as
follows: the Commissioner of Public Safety, ex officio, the Attorney General, ex officio,
the Game Warden Colonel in the Department of Inland Fisheries and Wildlife, ex officio,
the Commissioner of Corrections, ex officio, the Chief of the State Police, ex officio, and
the following to be appointed by the Governor: a county sheriff, a chief of a municipal
police department, 2 officers of municipal police departments who are not police chiefs, an
educator who is not and has never been a sworn member of a law enforcement agency, a
criminal prosecutor from one of the offices of the District Attorney, a representative of a
federal law enforcement agency, 3 citizens each of whom is not and has never been a sworn
member of a law enforcement agency, a municipal official who is not and has never been
a sworn member of a law enforcement agency, one nonsupervisory corrections officer
representing a state or county correctional facility, one person who is an attorney who
represents defendants in criminal cases and one person knowledgeable about public safety
who has been recommended to the Governor by the Wabanaki tribal governments of the
Aroostook Band of Micmacs Mi'kmaq Nation, the Houlton Band of Maliseet Indians, the
Passamaquoddy Tribe at Motahkmikuk, the Passamaquoddy Tribe at Sipayik and the
Penobscot Nation. The member appointed by the Governor based on the recommendation
of the Wabanaki tribal governments must be recommended by the tribal governments by a
process determined by those governments that provides for the board membership to rotate
among the tribal governments.
Sec. A-7. 25 MRSA §2803-B, sub-§1, ¶M, as amended by PL 2021, c. 342, §2,
is further amended to read:
M. Freedom of access requests. The chief administrative officer of a municipal, county
or state law enforcement agency shall certify to the board annually that the agency has
adopted a written policy regarding procedures to deal with a freedom of access request
and that the chief administrative officer has designated a person who is trained to
respond to a request received by the agency pursuant to Title 1, chapter 13; and
Sec. A-8. 25 MRSA §2803-B, sub-§1, ¶N, as enacted by PL 2021, c. 342, §3, is
amended to read:
N. Unannounced execution of search warrants.; and
Sec. A-9. 25 MRSA §2803-B, sub-§1, ¶O is enacted to read: Page 4 - 131LR2478(03)
O. By January 1, 2024, the confidentiality of attorney-client communications, which
must include, at a minimum, processes to protect and ensure confidentiality of
attorney-client communications and processes to be followed in the event that there is
a breach of attorney-client confidentiality.
Sec. A-10. 25 MRSA §2804-C, sub-§2-G is enacted to read:
2-G. Training regarding confidential attorney-client communications.
January 1, 2024, the board shall include in the basic law enforcement training program a
block of instruction on the confidentiality of attorney-client communications, including the
processes that law enforcement agencies use to protect and ensure the confidentiality of
attorney-client communications and the processes that law enforcement agencies follow in
the event that there is a breach of attorney-client confidentiality.
Sec. A-11. 25 MRSA §2804-D, as amended by PL 2017, c. 436, §1, is further
amended to read:
§2804-D. Basic corrections training
1. Required.
corrections officer, that person must successfully complete, within the first 12 months of
employment, a basic training course as approved by the board. Thereafter, as a condition
of continued employment as a corrections officer, the officer must satisfactorily maintain
the basic certification. The board, under extenuating and emergency circumstances in
individual cases, may extend the 12-month period for not more than 180 days. The board,
in individual cases, may waive basic training requirements when the facts indicate that an
equivalent course has been successfully completed in another state or federal jurisdiction.
A full-time correctional trade instructor must meet the training requirements established
under this subsection for corrections officers. Beginning January 1, 2018, the basic training
course must include 8 hours of training in how to identify, understand and respond to signs
of mental illnesses and substance use disorder that is provided by a trainer who is certified
by a nationally recognized organization that provides evidence-based mental health first
aid training. Beginning January 1, 2024, the basic training course must include a block of
instruction on the confidentiality of attorney-client communications, including the
processes that correctional facilities and jails use to protect and ensure the confidentiality
of attorney-client communications and the processes that correctional facilities and jails
follow in the event that there is a breach of attorney-client confidentiality.
Sec. A-12. 30-A MRSA §291
§291. Confidential attorney-client communications
By January 1, 2024, each district attorney shall adopt a written policy for the protection
of confidential attorney-client communications by employees and agents of the district
attorney's office, which must include, at a minimum, processes to protect and ensure
confidentiality of attorney-client communications and processes to be followed in the event
that there is a breach of attorney-client confidentiality.
Sec. A-13. 34-A MRSA §1208, sub-§8 is enacted to read:
8. Standards regarding attorney-client communications.
establish mandatory standards: Page 5 - 131LR2478(03)
A. By January 1, 2024, for the protection of confidential attorney-client
communications by each county and municipal detention facility. The standards must
include, at a minimum:
(1) Processes to protect and ensure confidentiality of attorney-client
communications, including but not limited to requirements that each facility
develop and maintain a registry of the names, telephone numbers and other contact
information for attorneys who provide legal services to residents of the facility and
that the attorneys' names, telephone numbers and other contact information on the
registry are confidential, except that each facility must proactively and by request
of the attorney or the attorney's client who is a resident of the facility confirm the
registration of an attorney's name, telephone number and other contact information;
and
(2) Processes to be followed in the event that there is a breach of attorney-client
confidentiality; and
B. By January 1, 2024, requiring each county and municipal detention facility to
designate space within the facility for attorney-client meetings and the exchange of
case materials and to make that space available to residents of the facility and their
attorneys on a timely basis.
Sec. A-14. 34-A MRSA §1402, sub-§14 is enacted to read:
14. Standards regarding attorney-client communications.
establish mandatory standards:
A. By January 1, 2024, for the protection of confidential attorney-client
communications by each correctional facility. The standards must include, at a
minimum:
(1) Processes to protect and ensure confidentiality of attorney-client
communications, including but not limited to requirements that each correctional
facility develop and maintain a registry of the names, telephone numbers and other
contact information for attorneys who provide legal services to persons who are
residents of the correctional facility and that the attorneys' names, telephone
numbers and other contact information on the registry are confidential, except that
each correctional facility must proactively and by request of the attorney or the
attorney's client confirm the registration of an attorney's name, telephone number
and other contact information; and
(2) Processes to be followed in the event that there is a breach of attorney-client
confidentiality; and
B. By January 1, 2024, requiring each correctional facility to designate space within
the correctional facility for attorney-client meetings and the exchange of case materials
and to make that space available to residents of the correctional facility and their
attorneys on a timely basis.
PART B
Sec. B-1. Report on courthouse space. The State Court Administrator shall submit
a report by January 1, 2024 to the Joint Standing Committee on Criminal Justice and Public
Safety and the Joint Standing Committee on Judiciary on the availability of space in public Page 6 - 131LR2478(03)
areas of courthouses and in secure holding areas of courthouses for confidential attorney-
client communications, including the review of written, video and audio materials related
to criminal cases. The report must include an assessment of the space available in each
courthouse and, to the extent space is inadequate for confidential attorney-client
communications, a plan for the development of adequate space within that courthouse.
Sec. B-2. Development of policies and procedures.
Professional Standards Council, established in the Maine Revised Statutes, Title 5, section
12004-G, subsection 6-D, shall convene meetings of state, county and municipal law
enforcement agencies, county and municipal jails, the judicial branch, the Department of
Corrections, the Maine Sheriffs' Association, the Office of the Attorney General, the Maine
Prosecutors Association, the Maine Association of Criminal Defense Lawyers and the
Maine Commission on Indigent Legal Services to develop a consistent set of policies and
procedures to be implemented by all law enforcement agencies, district attorneys' offices,
jails, holding facilities, short-term detention areas and correctional facilities, as applicable
to the agencies, offices and facilities, that protect and ensure attorney-client
communications are confidential and that clearly describe the following:
1. The process for protecting and ensuring the confidentiality of attorney-client
communications;
2. The policies to be followed in the event that there is a breach of attorney-client
confidentiality; and
3. The methods by which attorneys and persons who are residents of jails and
correctional facilities will be made aware of confidential channels for attorney-client
communications and the methods by which persons who are residents of jails and
correctional facilities will be provided with information regarding their right to confidential
attorney-client communications.