Maine jails recorded at least 837 private phone calls between attorneys and their incarcerated clients in the past 12 months, potentially violating state law in the process.
Four county jails that detain defendants before trial inappropriately recorded confidential phone calls in a massive breach of attorney-client privilege. What started as a report of a call between an attorney and a client being recorded at the Somerset County Jail has swelled to encompass 34 law firms and 161 defendants.
“It’s shocking. That’s absolutely shocking. It borders on the ridiculous, actually,” said Bob Cummins, a defense lawyer for nearly 60 years who is based in Portland.
County jails record most inmate calls, but state law prohibits any interference with attorney-client calls, even by jail investigators. Yet jail officials with Androscoggin, Aroostook, Franklin and Somerset counties reported they each found recordings of calls that should have been exempted but were not.
It is unclear how many of these newly disclosed calls, if any, were erroneously handed to prosecutors. But at least four times in the past five years, defense attorneys were told their calls were in the possession of a district attorney or the attorney general’s office.
Maine’s public defense agency — the Maine Commission on Indigent Legal Services — is determining whether it has legal authority to seek a temporary restraining order to stop the jails from recording or listening to attorney-client phone calls. Cummins is separately consulting with lawyers about whether a class action lawsuit could be brought by the 161 inmates who were recorded.
Aroostook County defense attorney Jeff Ashby said he had no knowledge that in the past year the county jail recorded his calls 51 times.
“Even if this is a function of carelessness, it’s a process that needs to be changed,” Ashby said.
His office is 45 miles — nearly an hour drive — from the Aroostook County Jail. He regularly is on the phone with clients discussing sensitive case information with the assumption the calls are confidential. Most of his clients held in jail are too poor to hire their own attorneys, and of the 16 inmates he was recorded speaking with, nearly all were assigned to Ashby by the court due to their inability to pay.
Ashby could not recall explicitly asking the jail not to record his phone calls. But that should not have been a barrier to his clients’ rights, he said.
“We have constitutional rights and we don’t have to sign up for them. They exist,” Ashby said.
Each of Maine’s 15 county jails contracts with a private vendor for inmate phone services and call monitoring. The companies collect fees on every call, email, video visit and tablet rental inmates purchase, and in return the counties receive a percentage of the revenue.
The Dallas-based company Securus Technologies is the provider for 13 county jails, and GTL is contracted by Two Bridges Regional Jail in Wiscasset and Somerset County Jail.
Securus Technologies’ senior manager, Jade Trombetta, said that it is attorneys and corrections employees responsibility to mark attorney-client calls as “private.”
“If phone numbers are not entered into the system as private, callers are notified that the call will in fact be recorded. In these cases, it appears that the attorneys’ phone numbers were not put into the system, the notification was not heeded, and the calls were recorded as designed,” Trombetta said in a written statement Thursday.
Securus has since blocked the recording feature on all future calls made to the attorney phone numbers that the commission identified.
Jail administrators have largely relied on an “opt-out” method, in which attorneys or their inmate-clients must proactively seek to have an attorney’s phone number exempted from recording.
This has created a “crisis-level problem” for the state, said Josh Tardy, chairman of the state defense commission, with hundreds of confidential calls in control of a third-party company.
The defense bar, prosecutors and the jails share the government’s responsibility to protect inmates’ constitutional right to access a lawyer, said Zach Heiden, policy director for the American Civil Liberties Union of Maine. When calls are being monitored or recorded, it fundamentally changes the nature of the conversations, limiting what inmates will share and the legal advice they receive in return, he said.
“If it’s been difficult to have anyone or any one entity accept blame. That’s probably because there’s plenty of blame to go around,” Heiden said.
The ACLU of Maine has not committed to taking this constitutional issue to court. The defense bar, prosecutors and jails could all voluntarily change their practices or agree to support a change in legislation, Heiden said.
“All options are on the table for us and we’re monitoring the situation,” Heiden said.
The commission intends to draft legislation that would prohibit the recording and monitoring of phone calls and emails exchanged between inmates and their attorneys. There would be a civil penalty for jails that violate the law and the right for people improperly recorded to sue.
Jails fight disclosure of additional calls
The 837 recordings almost certainly represent an undercount. The figure represents less than half the state’s jails during a 12-month span and does not include calls made to privately retained attorneys, who also may not have been properly exempted from the jails’ recording systems.
Most counties have not told the commission if calls to state defense attorneys were recorded, and several are trying to deny access to the information outright.
Only three jails — Two Bridges Regional Jail, Oxford and Waldo county jails — reported finding no recordings of calls to a limited set of state-contracted defense attorney phone numbers. Oxford and Waldo counties house inmates for 72 hours.
Cumberland, Piscataquis, Washington and York counties denied Freedom of Access Act requests made by the commission for records that would show which attorneys’ calls were recorded. Knox, Kennebec and Penobscot counties have also provisionally denied the state access to the records, but remain in negotiations with executive director John Pelletier.
Pine Tree Watch separately filed Freedom of Access Act requests for the records and was denied by Cumberland, Knox, Washington and York counties.
Heiden said it was “unacceptable” for the jails to refuse to release call records “undoubtedly in the public interest” to the state or the press.
The delay in the release of the lists of attorneys who the jails recorded is hurting defendants, said Robert LeBrasseur, a defense lawyer and non-voting member of the commission.
LeBrasseur said he cannot trust that his calls are not being monitored and therefore cannot fully advise his detained clients over the phone. If the jails want to say they didn’t record attorneys’’ calls, then they need to release the data to prove it, he said.
That attorney-client calls could be recorded at multiple jails and go undetected seemed unlikely to Cummins, who spent part of his career investigating judicial misconduct.
“What’s even more disturbing is undoubtedly folks in the system — I mean lawyers, prosecutors and judges — had to be aware of this. That this issue fell out of the sky is pretty amazing and disturbing,” Cummins said.
A review of inmate call records from Androscoggin, Aroostook and Franklin county jails by Pine Tree Watch showed:
― 622 attorney-client calls were recorded by Aroostook County Jail.
― 176 attorney-client calls were recorded by Androscoggin County Jail.
― 39 attorney-client calls were recorded by Franklin County Jail.
Most of the recorded calls were placed to law firms’ public phone numbers.
Somerset County Sheriff Dale Lancaster said in May it was an “unfortunate error” that the phone calls that sparked the commission’s investigation were recorded by Somerset County Jail and later released to the Office of the Attorney General.
Lancaster has since discovered an untold number of phone calls with state defense attorneys that were also recorded by the jail and its vendor GTL — “Global Tel Link.” The jail has since blocked all the known attorney phone numbers from its recording system, and instituted a new monthly audit of all attorney phone numbers. The jail will also vet all calls for attorney conversations before release, he said in an email Wednesday.
Lancaster declined to provide to the state defense agency a list of which attorney phone calls were recorded, stating it would “be labor intensive for jail staff and result in a cost,” Pelletier reported Tuesday.
The calls were deleted by GTL. But this does not resolve the problem for defendants, defense attorneys or prosecutors, who still don’t know whether privileged calls were released by the Somerset County Jail or GTL.
Midcoast District Attorney Natasha Irving said she hoped the recorded call was a “one-off” when Pine Tree Watch broke news in May of the potential breach of attorney-client privilege at Somerset County Jail. She put it on the agenda to discuss during her weekly staff meeting. Upon hearing the count had risen significantly, she said it would be on the agenda again.
“That’s disturbing. I will say, my belief is none of this was done maliciously, but at the same time we cannot let these privileged phone calls be recorded. We need to do better,” Irving said.
The midcoast prosecutorial district includes Sagadahoc and Lincoln counties — served by Two Bridges Regional Jail — as well as Knox County and Waldo County. Inmates at Waldo County who cannot pay bail are sent to the Somerset County Jail.
Irving could not recall a report in her year and a half in office of an attorney-client call being sent in discovery by the jails in her district. If it had, she was confident her prosecutors would recognize the voices or context of an attorney-client call, stop listening and report it to her.
If they didn’t, they would risk prosecutorial misconduct charges or disbarment, Irving said.
The commission’s next step will be to work with each jail to determine whether any known recordings of attorney-client calls were accessed by law enforcement or prosecutors.
Prosecutors do not want to be given nor are they entitled to possess communications between an attorney and client, said Andrew Robinson, president of the Maine Prosecutors Association. But just because a phone call exists does not mean it was released to a prosecutor, he said. A very limited number of calls end up in the hands of prosecutors during criminal investigations.
“We are learning the system is not perfect, however when on those rare occasions a prosecutor becomes aware of a privileged recording, we immediately stop listening and bring the mistake to the attention of the recorded attorney,” Robinson wrote in a statement Tuesday.
The prosecutors association plans to send a letter to all of the jails “emphasizing the importance of having procedures in place to avoid obtaining any communication between an attorney and their client,” Robinson said. The letter will be finalized at its meeting Friday.
Story by Samantha Hogan, Pine Tree Watch.