An Act To Ensure Constitutionally Adequate Contact with Counsel
Maine Legislature, Session 130, LD 1946
Committee: Judiciary
Sponsors: HARNETT, CARNEY, DODGE, GROHOSKI, LOOKNER, MADIGAN, MORIARTY, PEBWORTH, PLUECKER, TALBOT ROSS
Amends: 34-A MRSA §3015, 34-A MRSA §3031, 30-A MRSA §1566, 30-A MRSA §1663, 15 MRSA §458, 17-A MRSA §761

Legislative Document
No. 1946
H.P. 1451
House of Representatives, January 26, 2022
An Act To Ensure Constitutionally Adequate Contact with Counsel
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.
ROBERT B. HUNT
Clerk
Presented by Representative HARNETT of Gardiner.
Cosponsored by Senator CARNEY of Cumberland and
Representatives: DODGE of Belfast, GROHOSKI of Ellsworth, LOOKNER of Portland, 
MADIGAN of Waterville, MORIARTY of Cumberland, PEBWORTH of Blue Hill, 
PLUECKER of Warren, TALBOT ROSS of Portland.
Be it enacted by the People of the State of Maine as follows:
PART A
Sec. A-1.  34-A MRSA §3015 is enacted to read:
§3015.  Confidential communications
A chief administrative officer shall make available to a resident and the resident's 
counsel a means to engage in confidential communications as required by section 3031, 
subsection 11 and in accordance with this section.
1.  Definitions.  As used in this section, unless the context otherwise indicates, the 
following terms have the following meanings.
A.  "Commission" means the Maine Commission on Indigent Legal Services 
established by Title 5, section 12004-G, subsection 25-A.
B.  "Facility" means a correctional facility or a detention facility.
C.  "Resident" means a person who resides in a facility.  
2.  Access.  A facility shall provide a means to engage in confidential communications 
between a resident and the resident's counsel in person in space within the facility or by 
telephone, video or other electronic means without charge to the resident or the resident's 
counsel.
3.  Prohibited conduct.  A facility may not intercept, record, monitor, disseminate or 
otherwise divulge any oral, written, telephone, video or electronic communication between 
a resident and the resident's counsel.  The provisions of this subsection apply to any 
employee of a facility and to any agent, employee, contractor or vendor of communication 
services that provides services to a facility or works with the facility in any capacity.  A 
violation of this subsection by an agent, employee, contractor or vendor of communication 
services that provides services to a facility or works with the facility in any capacity is 
deemed a violation by the facility.
4.  Logs.  A facility and any contractor or vendor that provides communication services 
subject to this section shall create and maintain for a minimum of 7 years logs of all 
confidential communications to or from the facility to which a resident is a party, including 
but not limited to the date and time of the telephone call or video or electronic 
communication, the telephone number or electronic address involved, the duration of the 
telephone call or video or electronic communication and the name of the resident.  All logs 
of communications related to a resident and the resident's counsel must be released upon 
request within 30 days to the resident or the resident's authorized representative or counsel 
requesting the logs and to the commission.  
5.  Audit.  Every 90 days, a facility shall audit its logs of telephone, video and 
electronic communications to or from telephone numbers and electronic addresses listed as 
belonging to counsel for a resident and shall, upon completion of the audit, provide that 
audit to the commission.  If an audit concludes that a recording of a telephone call or video 
or electronic communication exists or that information was obtained or gathered in 
violation of this section, the chief administrative officer shall inform counsel, the resident 
and the commission within 3 business days.  
6.  Policy.  A chief administrative officer shall adopt policies providing access to 
communications as required by this section and forbidding conduct prohibited by this 
section, shall review and update the policies annually and shall publish the policies on the 
facility's publicly accessible website and provide copies to the commission.
Sec. A-2.  34-A MRSA §3031, sub-§9, as amended by PL 2021, c. 263, §4, is 
further amended to read:
9.  Menstrual products.  Comprehensive access to menstrual products, including, but 
not limited to, sanitary pads and tampons, provided and available at all times and without 
inconvenience or charge to a person who menstruates who resides in a correctional or 
detention facility; and
Sec. A-3.  34-A MRSA §3031, sub-§10, as enacted by PL 2021, c. 263, §5, is 
amended to read:
10.  Gender affirmation.  Have the person's consistently held gender identity 
respected and acknowledged, irrespective of anatomy or physique.  Housing placements 
and search practices must be consistent with the person's consistently held gender identity 
except when such placement or search would present significant management or security 
problems to the correctional or detention facility or threaten the health and safety of the 
person.  A person must have access to commissary items, clothing, personal property, 
programming and educational materials that are consistent with the person's consistently 
held gender identity.  Correctional or detention facility staff shall address a person in a 
manner that is consistent with the person's consistently held gender identity.; and
Sec. A-4.  34-A MRSA §3031, sub-§11 is enacted to read:
11.  Confidential communications.  A means to engage in confidential 
communications as follows:
A.  Confidential communications with counsel by telephone, video or electronic 
communication at a minimum twice a day and at all other necessary times by means 
that ensure that the communications are confidential to the person and the person's 
counsel and cannot be monitored, recorded or overheard by any other person; 
B.  Written notice that the person's counsel has contacted the facility to request that the 
person call or contact the person's counsel.  The facility shall keep a written record of 
the contact by the person's counsel and the notice to the person from the facility.  
Failure of the facility to maintain a copy of the notice to the person is prima facie 
evidence that notice was not provided; and  
C.  An opportunity to receive from and review with counsel all documents sent to the 
person by counsel, including but not limited to letters, pleadings and discovery in any 
format or form, and to send documents to counsel without interception, monitoring, 
copying, redaction or other action or review by the facility or anyone acting on behalf 
of the facility or the State.
Sec. A-5.  Communications policy.  Within 90 days of the effective date of this 
Act, the chief administrative officer of each Department of Corrections correctional facility 
or detention facility shall adopt a policy providing each resident of the correctional facility 
or detention facility a means to engage in confidential communications as required by the 
Maine Revised Statutes, Title 34-A, section 3015 and section 3031, subsection 11 and shall 
publish the policy on the facility's publicly accessible website and provide a copy to the 
Maine Commission on Indigent Legal Services established in Title 5, section 12004-G, 
subsection 25-A.
PART B
Sec. B-1.  30-A MRSA §1566 is enacted to read:
§1566.  Confidential communications
A person who is incarcerated in a jail has a right to a means to engage in confidential 
communications with the person's counsel as required by section 1663 and in accordance 
with this section.
1.  Definitions.  As used in this section, unless the context otherwise indicates, the 
following terms have the following meanings.
A.  "Commission" means the Maine Commission on Indigent Legal Services 
established by Title 5, section 12004-G, subsection 25-A.
B.  "Jail" means a jail or other county correctional facility or a regional correctional 
facility operated pursuant to this chapter.
C.  "Person" means a person who is incarcerated in a jail.
2.  Access.  A jail shall provide a means to engage in confidential communications 
between a person and the person's counsel in person in space within the jail or by telephone, 
video or electronic communication without charge to the person or that person's counsel.
3.  Prohibited conduct.  A jail may not intercept, record, monitor, disseminate or 
otherwise divulge an oral, written, telephone, video or electronic communication between 
a person and the person's counsel.  The provisions of this subsection also apply to any 
agent, employee, contractor or vendor of communication services that provides services to 
a jail or works with a jail in any capacity.  A violation of this subsection by an agent, 
employee, contractor or vendor of communication services that provides services to a jail 
or works with a jail in any capacity is deemed a violation by the jail.
4.  Logs.  A jail and any contractor or vendor that provides communication services 
subject to this section shall create and maintain for a minimum of 7 years logs of all 
confidential communications to or from the jail to which a person incarcerated in the jail is 
a party, including but not limited to the date and time of the telephone call or video or 
electronic communication, the telephone number or electronic address involved, the 
duration of the telephone call or video or electronic communication and the name of the 
person.  All logs of confidential communications related to a person and the person's 
counsel must be released upon request within 30 days to the person or that person's 
authorized representative or counsel requesting the logs and to the commission.  
5.  Audit.  Every 90 days, a jail shall audit its logs of telephone, video and electronic 
communications to or from telephone numbers and electronic addresses listed as belonging 
to counsel for a person and shall, upon completion of the audit, provide that audit to the 
commission.  If an audit concludes that a recording of a telephone call or video or electronic 
communication exists or that information was obtained or gathered in violation of this 
section, the administrator of the jail shall inform counsel, the person and the commission 
within 3 business days.  
6.  Policy.  The administrator of a jail shall adopt a policy providing a means to engage 
in confidential communications as required by this section, shall review and update the 
policy annually and shall publish the policy on a publicly accessible website and provide a 
copy to the commission.
Sec. B-2.  30-A MRSA §1663 is enacted to read:
§1663.  Confidential communications
The administrator of a jail as defined in section 1566, subsection 1, paragraph B shall 
provide the following means to engage in confidential communications for a person who 
is incarcerated in the jail:
1.  Access.  Confidential communications with counsel by telephone, video or 
electronic communication at a minimum twice a day and at all other necessary times by 
means that ensure that the communications are confidential to the person and the person's 
counsel and cannot be monitored, recorded or overheard by any other person;  
2.  Written notice of request.  Written notice that the person's counsel has contacted 
the jail to request that the person call or contact the person's counsel.  The jail shall keep a 
written record of the contact by the person's counsel and the notice to the person from the 
jail.  Failure of the jail to maintain a copy of the notice to the person is prima facie evidence 
that notice was not provided; and  
3.  Document review.  An opportunity to receive from and review with counsel all 
documents sent to the person by counsel, including but not limited to letters, pleadings and 
discovery in any format or form, and to send documents to counsel without interception, 
monitoring, copying, redaction or other action or review by the jail or anyone acting on 
behalf of the jail or the State.
Sec. B-3.  Communications policy.  Within 90 days of the effective date of this 
Act, the administrator of each county jail or other county correctional facility shall adopt a 
policy providing access to communications as required by the Maine Revised Statutes, Title 
30-A, sections 1566 and 1663 and shall publish the policy on a publicly accessible website 
and provide a copy to the Maine Commission on Indigent Legal Services established in 
Title 5, section 12004-G, subsection 25-A.
PART C
Sec. C-1.  15 MRSA §458 is enacted to read:
§458.  Confidential communications between client and counsel
The following provisions apply with regard to confidential communications between a 
person summonsed or arrested for, charged with, indicted for or convicted of a crime and 
the counsel for that person that are protected pursuant to Title 30-A, section 1566 and Title 
34-A, section 3015.
1.  Opportunity for confidential communications.  A person summonsed or arrested 
for, charged with, indicted for or convicted of a crime has a right to an opportunity for 
confidential communications with the person's counsel in person and by telephone, video 
or electronic communication in preparation for a court appearance, before and during 
arraignment and while appearing in court, including confidential communications that are 
not overheard or monitored by another person.  
2.  Prohibited use of documents and information in court.  With respect to a 
document or information of any kind and in any format or form that was obtained in 
violation of Title 30-A, section 1566, subsection 3 or Title 34-A, section 3015, subsection 
3, all information and materials derived from the document or information are inadmissible 
in any court proceeding.  The doctrines of inevitable discovery and exigency do not apply 
to evidence that is inadmissible in court pursuant to this subsection.  A claim of 
inadvertence, negligence, recklessness or mistake does not render admissible a document 
or information that is inadmissible under this subsection.  
3.  Prohibited participation in court.  Except as provided in this subsection, a person 
who has accessed or received any document, recording or information of any type in 
violation of Title 30-A, section 1566 or Title 34-A, section 3015, whether or not the person 
has reviewed the substance of the document, recording or information, may not participate 
in any investigation, prosecution, mental health or child protective proceeding or any other 
matter before a court in this State, including through formal or informal communications.  
A person is not prohibited from participation under this subsection if the person has the 
exclusive ability to provide relevant factual information and a judicial officer other than 
the presiding officer has reviewed the facts regarding the participation of the person and 
has issued findings and a ruling on the scope and exclusivity of the testimony that the 
person may provide.  
4.  Additional post-conviction review.  In addition to any other post-conviction 
remedy provided to a person convicted of a crime in this State pursuant to chapter 305-A, 
a person whose confidential communications with counsel have been intercepted in 
violation of Title 30-A, section 1566 or Title 34-A, section 3015 or in any other way by the 
State, a prosecutor or a law enforcement agency may file a petition for post-conviction 
review up to 2 years from the date that the person is notified by the person's counsel of the 
interception of the communication.
5.  Civil remedies.  A person who, without permission from all parties to a 
conversation or oral communication, knowingly eavesdrops on, records or transmits the 
conversation or oral communication or any portion thereof between a person who is in the 
physical custody of a law enforcement officer or other public officer and the person's 
counsel or between a person who is on the property of a law enforcement agency or other 
public agency and the person's counsel is subject to a civil action in Superior Court and a 
civil penalty of not more than $10,000 per occurrence, payable to the Maine Commission 
on Indigent Legal Services, established in Title 5, section 12004-G, subsection 25-A, to be 
applied by the commission to noncounsel costs associated with promoting effective 
representation of indigent clients.
6.  Private cause of action.  A person who is aggrieved by the action of another 
individual who, without permission from all parties to a conversation or oral 
communication, knowingly eavesdrops on, records or transmits the conversation or oral 
communication or any portion thereof between a person who is in the physical custody of 
a law enforcement officer or other public officer and the person's counsel or between a 
person who is on the property of a law enforcement agency or other public agency and that 
person's counsel has a private cause of action against that individual in Superior Court for 
which the aggrieved person may be awarded by the court actual damages, restitution, 
attorney's fees and costs and such other equitable relief as the court determines to be 
necessary and proper.
Sec. C-2.  Policy statement.  Within 90 days of the effective date of this Act, the 
district attorneys for each prosecutorial district and the Attorney General shall adopt and 
post to their publicly accessible websites and shall provide to the Maine Commission on 
Indigent Legal Services established in the Maine Revised Statutes, Title 5, section 
12004-G, subsection 25-A policies that provide assurance of compliance with Title 15, 
section 458, subsection 1; Title 30-A, section 1566, subsections 2 and 3; and Title 34-A, 
section 3015, subsections 2 and 3.
PART D
Sec. D-1.  17-A MRSA §761 is enacted to read:
§761.  Unauthorized eavesdropping
1.   A person is guilty of unauthorized eavesdropping if that person, without permission 
from all parties to a conversation or oral communication, knowingly eavesdrops on, records 
or transmits the conversation or oral communication or any portion thereof between a 
person who is in the physical custody of a law enforcement officer or other public officer 
and the person's counsel or between a person who is on the property of a law enforcement 
agency or other public agency and the person's counsel.
2.   Unauthorized eavesdropping is a Class C crime.
PART E
Sec. E-1.  Retrospective review and audit.  The Maine Commission on Indigent 
Legal Services established in the Maine Revised Statutes, Title 5, section 12004-G, 
subsection 25-A, the Department of Corrections and the county jails and other county 
correctional facilities shall engage in a process of retrospective review and audit.  Within 
days of the effective date of this Act, the commission shall identify and compile a list 
of telephone numbers and electronic addresses of attorneys to which incarcerated persons 
have placed telephone calls or sent electronic communications in the previous 6 years and 
shall notify each correctional facility or detention facility and each jail or county 
correctional facility.  Within 180 days of the effective date of this Act, each correctional 
facility and detention facility and each county jail or other county correctional facility shall 
audit its records of telephone calls and electronic communications to determine whether 
any telephone calls or electronic communications on the list provided by the commission 
may have been recorded and, with regard to any telephone call or electronic communication 
that may have been recorded, shall provide to the commission sufficient detail on each 
telephone call or electronic communication to allow the commission to identify the attorney 
telephone number or electronic address involved in the telephone call or electronic 
communication, the affected client and the date, time and duration of the telephone call or 
electronic communication. After receipt of the detail of the telephone call or electronic 
communication required by this section, the commission shall inform each listed attorney, 
who shall inform each affected client.
SUMMARY
This bill ensures constitutionally adequate contact with counsel for residents of 
Department of Corrections correctional and detention facilities, for persons who are 
incarcerated in county jails and other county correctional facilities and for clients and their 
counsel in court facilities.  The bill addresses telephone, video and electronic forms of 
communication and person-to-person contact.  The bill prohibits intercepting, recording, 
monitoring, disseminating or otherwise divulging any oral, written, telephone, video or 
electronic communication between clients and their counsel.  The bill requires facilities to 
maintain logs of telephone calls and communications between clients and their counsel and 
requires periodic auditing of logs.  The bill requires a facility to provide written notice to a 
client when the client's counsel contacts the facility and asks for the client to contact 
counsel.  The bill requires a facility to provide an opportunity to review documents with 
counsel.  The bill requires periodic audits and requires the adoption of policies that are 
published publicly and submitted to the Maine Commission on Indigent Legal Services.  
For violations of the law, the bill establishes civil penalties, a private cause of action and 
post-conviction review in addition to review provided pursuant to the Maine Revised 
Statutes, Title 15, chapter 305-A.  The bill prohibits use of illegally obtained information 
in court and prohibits participation in court by a person who has accessed or received a 
document, recording or information in violation of the law.  The bill creates a new Class C 
crime of unauthorized eavesdropping.  The bill requires the Maine Commission on Indigent 
Legal Services, the Department of Corrections and the county jails and other county 
correctional facilities to conduct a retrospective review of telephone calls and electronic 
communications between clients and their counsel, who are required to provide notice to 
their clients affected by prohibited recordings.