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131st MAINE LEGISLATURE
SECOND REGULAR SESSION-2024
Legislative Document No. 2159S.P. 915 In Senate, January 9, 2024
An Act to Protect the Confidentiality of Attorney-Client E-mail
Communications for Residents of Jails and Correctional Facilities
Approved for introduction by a majority of the Legislative Council pursuant to Joint Rule
203.
Reference to the Committee on Judiciary suggested and ordered printed.
DAREK M. GRANT
Secretary of the Senate
Presented by Senator CARNEY of Cumberland.
Cosponsored by Representative MOONEN of Portland. Page 1 - 131LR2708(01)
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3 amended to read:
4 P. Develop and maintain a registry of names, telephone numbers, e-mail addresses and
5 other contact information for attorneys who provide legal services to persons who are
6 incarcerated. The commission shall on a weekly basis provide these names, telephone
7 numbers, e-mail addresses and other contact information to all sheriffs' offices and to
8 the Department of Corrections. On the Monday following transmission of the
9 information, the sheriffs' offices and the Department of Corrections have constructive
10 notice that communications to and from these attorneys by residents of jails and
11 correctional facilities are subject to the attorney-client privilege. The attorneys' names,
12 telephone numbers, e-mail addresses and other contact information are confidential.
13 as enacted by PL 2023, c. 394, Pt. A, §4, is amended to
14 read:
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16 The Attorney General shall adopt a written policy
17 for the protection of confidential attorney-client communications by employees and agents
18 of the Attorney General, which must include, at a minimum, processes to protect and ensure
19 confidentiality of attorney‑client communications and processes to be followed in the event
20 that there is a breach of attorney-client confidentiality.
21 The Attorney General shall develop a training
22 program for all state, county and municipal law enforcement officers and investigators
23 who, as part of a criminal investigation, may inadvertently hear, view or read confidential
24 attorney-client communications, which must include, at a minimum, practices and
25 procedures for protecting and ensuring confidential attorney-client communications and
26 practices and procedures to be followed in the event that there is a breach of attorney-client
27 confidentiality.
28 as amended by PL 1979, c. 701, §11, is further
29 amended to read:
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31 view, read or record the contents of any wire communication or oral communication
32 through the use of any intercepting device by any person other than:
33 A. The sender or receiver of that communication;
34 B. A person within the range of normal unaided hearing or subnormal hearing
35 corrected to not better than normal; or
36 C. A person given prior authority by the sender or receiver.
37 as enacted by PL 2023, c. 394, Pt. A, §5, is amended to
38 read:
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3 communication was, at the time the communication was made, a resident in either a jail or
4 an adult or juvenile correctional facility administered by the Department of Corrections and
5 the other party was an attorney and if the resident demonstrates that the jail or correctional
6 facility had actual or constructive notice at the time the communication was made of the
7 attorney's name and, if the communication involved the use of a telephone, the jail or
8 correctional facility had actual or constructive notice at the time that the communication
9 was made of the attorney's telephone number and the communication was made directly to
10 or from that telephone number:
11 A. The contents of the intercepted oral communication or wire communication and the
12 fact and circumstances of the communication are not admissible in a criminal
13 proceeding, including a proceeding under chapter 305‑A;
14 B. A person who viewed or , listened to or read the intercepted oral communication or
15 wire communication and did not immediately discontinue viewing or, listening to or
16 reading the communication as soon as the person had sufficient information to
17 determine that the sender or the recipient of the communication was, at the time the
18 communication was made, a resident in a jail or correctional facility and the other part
19 party was an attorney, is disqualified from participating in an investigation of the
20 resident and from appearing as a witness in a criminal proceeding in which the resident
21 is a defendant, including a proceeding under chapter 305‑A; and
22 C. A person who viewed or , listened to or read the intercepted oral communication or
23 wire communication and saw or, heard or read information that may be relevant to a
24 pending or anticipated charge against the resident or a defense the resident may assert,
25 or may lead to the discovery of that evidence, is disqualified from participating in the
26 investigation of the resident and from appearing as a witness in the pending or
27 anticipated criminal proceeding in which the resident is a defendant, including a
28 subsequent proceeding under chapter 305‑A on the pending or anticipated charge.
29 For purposes of this subsection, the inclusion of the attorney's name and telephone number
30 on a list transmitted by the Maine Commission on Indigent Legal Services pursuant to Title
31 4, section 1804, subsection 3, paragraph P to a sheriff's office or to the Department of
32 Corrections constitutes constructive notice to a jail in the same county as the sheriff's office
33 or to all correctional facilities administered by the Department of Corrections, respectively,
34 beginning on the Monday following the transmission.
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36 communication or wire communication for which:
37 A. The sender or recipient of the communication was, at the time the communication
38 was made, a resident in either a jail or an adult or juvenile correctional facility
39 administered by the Department of Corrections and the other party was an attorney;
40 and
41 B. The resident under paragraph A demonstrates that the jail or correctional facility:
42 (1) For an oral communication, had actual or constructive notice of the attorney's
43 name at the time the communication was made; Page 3 - 131LR2708(01)
1 (2) Had actual or constructive notice of the attorney's name and telephone number
2 at the time the communication was made, if the communication involved the use
3 of a telephone and the communication was made directly to or from the attorney's
4 telephone number; or
5 (3) Had actual or constructive notice of the attorney's name and e-mail address at
6 the time the communication was made or intercepted, if the communication
7 involved the use of e-mail and the communication was made directly to or from
8 the attorney's e-mail address.
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10 name, telephone number or e-mail address on a list transmitted by the Maine Commission
11 on Indigent Legal Services pursuant to Title 4, section 1804, subsection 3, paragraph P to
12 a sheriff's office or to the Department of Corrections constitutes constructive notice of the
13 name, telephone number or e-mail address to a jail in the same county as the sheriff's office
14 or to all correctional facilities administered by the Department of Corrections, respectively,
15 beginning on the Monday following the transmission.
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17 any other provision of law or of the Maine Rules of Evidence regarding the admissibility
18 or inadmissibility in evidence of attorney-client communications that do not meet the
19 requirements of this section.
20 as enacted by PL 2023, c. 394, Pt. A, §13, is
21 amended to read:
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23 establish mandatory standards:
24 A. By January 1, 2024, for For the protection of confidential attorney-client
25 communications by each county and municipal detention facility. The standards must
26 include, at a minimum:
27 (1) Processes to protect and ensure confidentiality of attorney-client
28 communications, including but not limited to requirements that each facility
29 develop and maintain a registry of the names, telephone numbers, e-mail addresses
30 and other contact information for attorneys who provide legal services to residents
31 of the facility and that the attorneys' names, telephone numbers, e-mail addresses
32 and other contact information on the registry are confidential, except that each
33 facility must proactively and by request of the attorney or the attorney's client who
34 is a resident of the facility confirm the registration of an attorney's name, telephone
35 number, e-mail address and other contact information; and
36 (2) Processes to be followed in the event that there is a breach of attorney-client
37 confidentiality; and
38 B. By January 1, 2024, requiring Requiring each county and municipal detention
39 facility to designate space within the facility for attorney-client meetings and the
40 exchange of case materials and to make that space available to residents of the facility
41 and their attorneys on a timely basis.
42 as enacted by PL 2023, c. 394, Pt. A, §14, is
43 amended to read: Page 4 - 131LR2708(01)
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2 establish mandatory standards:
3 A. By January 1, 2024, for For the protection of confidential attorney-client
4 communications by each correctional facility. The standards must include, at a
5 minimum:
6 (1) Processes to protect and ensure confidentiality of attorney-client
7 communications, including but not limited to requirements that each correctional
8 facility develop and maintain a registry of the names, telephone numbers, e-mail
9 addresses and other contact information for attorneys who provide legal services
10 to persons who are residents of the correctional facility and that the attorneys'
11 names, telephone numbers, e-mail addresses and other contact information on the
12 registry are confidential, except that each correctional facility must proactively and
13 by request of the attorney or the attorney's client confirm the registration of an
14 attorney's name, telephone number, e-mail address and other contact information;
15 and
16 (2) Processes to be followed in the event that there is a breach of attorney-client
17 confidentiality; and
18 B. By January 1, 2024, requiring Requiring each correctional facility to designate
19 space within the correctional facility for attorney-client meetings and the exchange of
20 case materials and to make that space available to residents of the correctional facility
21 and their attorneys on a timely basis.
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23 Public Law 2023, chapter 394 specified the consequences for the interception of an
24 oral or wire communication, including a telephone call, between a person residing in either
25 a jail or in an adult or juvenile correctional facility and an attorney; these communications
26 are confidential. This bill extends those consequences to an intercepted attorney-client e-
27 mail communication if the resident can show that the jail or correctional facility had actual
28 or constructive notice at the time the e-mail communication was made or intercepted of the
29 attorney's name and the attorney's e-mail address and if the communication was made
30 directly to or from that e-mail address. Similar to Public Law 2023, chapter 394, the bill
31 provides that:
32 1. The contents and existence of the communication are not admissible in a criminal
33 proceeding, including a post-conviction review proceeding;
34 2. A person who viewed, listened to or read the communication and did not
35 immediately discontinue doing so as soon as the person had sufficient information to
36 determine that the communication was protected by attorney-client privilege is disqualified
37 from participating in an investigation of the resident and from appearing as a witness in a
38 criminal proceeding in which the resident is a defendant, including a post-conviction
39 review proceeding; and
40 3. A person who viewed, listened to or read the intercepted communication and saw,
41 heard or read information that may be relevant to a pending or anticipated charge against
42 the resident or a defense the resident may assert, or that may lead to the discovery of that
43 evidence, is disqualified from participating in an investigation of the resident or appearing
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44 as a witness in the pending or anticipated criminal proceeding in which the resident is a
45 defendant, including a subsequent post-conviction review proceeding on the pending or
46 anticipated criminal proceeding.
4 The bill also makes technical changes to remove previously expired deadlines.
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