An Act to Implement the Recommendations of the Committee To Ensure Constitutionally Adequate Contact with Counsel
Maine Legislature, Session 131, LD 1603
Committee: Judiciary
Amends: 4 MRSA §1804, 5 MRSA §200-N, 15 MRSA §713, 25 MRSA §2802, 25 MRSA §2803-B, 25 MRSA §2804-C, 25 MRSA §2804-D, 30-A MRSA §291, 34-A MRSA §1208, 34-A MRSA §1402

Legislative Document
No. 1603
S.P. 635
In Senate, April 11, 2023
An Act to Implement the Recommendations of the Committee To 
Ensure Constitutionally Adequate Contact with Counsel
Reported by Senator CARNEY of Cumberland for the Joint Standing Committee on 
Judiciary pursuant to Joint Order 2023, S.P. 594.
Reference to the Committee on Judiciary suggested and ordered printed pursuant to Joint 
Rule 218.
DAREK M. GRANT
Secretary of the Senate
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 is enacted to read:
§200-N.  Confidential attorney-client communications
1.  Policies.  By January 1, 2024, the Attorney General shall adopt a written policy for 
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.  By January 1, 2024, the Attorney General shall develop a 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 §713, sub-§1, as enacted by PL 2011, c. 507, §7, is amended 
to read:
1.  Contents obtained under the laws of another jurisdiction.  The contents of an 
interception of any oral communication or wire communication that has been legally 
obtained under the laws of another jurisdiction in which the interception occurred are 
admissible in the courts of this State, subject to the Maine Rules of Evidence; and
Sec. A-6.  15 MRSA §713, sub-§2, as amended by PL 2021, c. 365, §4 and affected 
by §37, is further amended to read:
2.  Contents obtained under this chapter.  The contents of an interception of any oral 
communication or wire communication that has been legally obtained pursuant to section 
712, subsection 2 or 3 are admissible in the courts of this State, subject to the Maine Rules 
of Evidence, if related to the administration of criminal justice as defined in Title 16, 
section 703, subsection 1 for the purposes of the Criminal History Record Information Act 
or as defined in Title 16, section 803, subsection 2 for the purposes of the Intelligence and 
Investigative Record Information Act; the administration of juvenile justice; or the 
statutory functions of a state agency.; and
Sec. A-7.  15 MRSA §713, sub-§3 is enacted to read:
3.  Intercepted attorney-client communications.  The contents of an intercepted oral 
communication or wire communication and the circumstances or fact of the communication 
are not admissible in a criminal proceeding, including a proceeding under chapter 305-A, 
and any person who accesses, monitors, records, copies, transmits or receives a copy of the 
communication is disqualified from participating in an investigation and from appearing as 
a witness in the proceeding if:
A. The defendant was either the sender or receiver of that communication, the 
defendant resided in an adult section of a jail at the time the communication was made, 
the other party to the communication was an attorney and the defendant demonstrates 
that the jail had actual or constructive notice of the attorney's name and, if the 
communication involved the use of a telephone, the attorney's telephone number, at the 
time the communication was intercepted; or
B. The defendant was either the sender or receiver of that communication, the 
defendant resided in an adult or juvenile correctional facility administered by the 
Department of Corrections at the time the communication was made, the other party to 
the communication was an attorney and the defendant demonstrates that the 
correctional facility had actual or constructive notice of the attorney's name and, if the 
communication involved the use of a telephone, the attorney's telephone number, at the 
time the communication was intercepted.
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, beginning on the Monday following the 
transmission, to a jail in the same county as the sheriff's office or to all correctional facilities 
administered by the Department of Corrections, respectively.
This subsection does not limit the applicability of any other provision of law or of the 
Maine Rules of Evidence regarding the admissibility of attorney-client communications 
that do not meet the requirements of this subsection.
Sec. A-8.  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-9.  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-10.  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-11.  25 MRSA §2803-B, sub-§1, ¶O is enacted to read:
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-12.  25 MRSA §2804-C, sub-§2-G is enacted to read:
2-G.  Training regarding confidential attorney-client communications.  Beginning 
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-13.  25 MRSA §2804-D, as amended by PL 2017, c. 436, §1, is further 
amended to read:
§2804-D.  Basic corrections training
1.  Required.  As a condition to the continued employment of any person as a 
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-14.  30-A MRSA §291 is enacted to read:
§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-15.  34-A MRSA §1208, sub-§8 is enacted to read:
8.  Standards regarding attorney-client communications.  The commissioner shall 
establish mandatory standards:
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 each facility 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;
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; and
C. Within 18 months of the effective date of this paragraph, requiring each county and 
municipal detention facility to designate a private and secure space within the facility 
for residents of the facility to store and view materials, including audiovisual materials, 
related to criminal proceedings and post-conviction review proceedings involving 
those residents.
Sec. A-16.  34-A MRSA §1402, sub-§14 is enacted to read:
14.  Standards regarding attorney-client communications.  The commissioner shall 
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 each correctional facility 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;
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; and
C. Within 18 months of the effective date of this paragraph, requiring each correctional 
facility to designate a private and secure space within the correctional facility for 
residents of the correctional facility to store and view materials, including audiovisual 
materials, related to criminal proceedings and post-conviction review proceedings 
involving those residents.
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 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. The County Corrections 
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.
SUMMARY
This bill implements the recommendations of the Committee To Ensure 
Constitutionally Adequate Contact with Counsel.
Part A of the bill:
1. Requires that all state, county and municipal law enforcement agencies and district 
attorneys and the Attorney General adopt policies and procedures by January 1, 2024 to 
protect and ensure the confidentiality of attorney-client communications and processes to 
be followed in the event that there is a breach of attorney-client confidentiality. It also 
requires the Commissioner of Corrections to establish by January 1, 2024 mandatory 
standards for all county jails, holding facilities, short-term detention areas and correctional 
facilities protecting and ensuring the confidentiality of attorney-client communications and 
processes to be followed in the event that there is a breach of attorney-client confidentiality;
2. Directs the Attorney General to develop a training program by January 1, 2024 for 
state, county and municipal law enforcement officers who, as part of a criminal 
investigation, inadvertently hear confidential attorney-client communications;
3. Adds an attorney who represents defendants in criminal cases to the membership of 
the board of trustees of the Maine Criminal Justice Academy and directs the board to 
include in the curriculum of the basic law enforcement training program and the basic 
corrections training a block of instruction on the confidentiality of attorney-client 
communications;
4.  Directs the Maine Commission on Indigent Legal Services to develop and maintain 
a registry of names, telephone numbers and other contact information for attorneys who 
provide legal services to persons who are incarcerated and to share this information with 
the Department of Corrections and each county sheriff's office weekly.  The attorneys' 
names, telephone numbers and other contact information are confidential and do not 
constitute public records under the Freedom of Access Act;
5.  Directs the commissioner to establish by January 1, 2024, standards for all county 
jails, holding facilities, short-term detention areas and correctional facilities requiring each 
facility to maintain a registry of the names, telephone numbers and other contact 
information of attorneys who provide legal services to persons who reside in the facility 
and that each facility proactively and by request of the attorney or the attorney's client 
confirm the registration of the attorney's name, telephone number and other contact 
information;
6. Provides that, if an oral or wire communication between a person residing in an adult 
jail or in an adult or juvenile correctional facility and the person's attorney is intercepted, 
the contents of and the existence of the communication are not admissible in a criminal 
proceeding, including a post-conviction review proceeding, if the defendant can show that 
the jail or correctional facility had actual or constructive notice of the attorney's name and, 
if the communication involved the use of a telephone, the attorney's telephone number, at 
the time the communication was intercepted.  The inclusion of the attorney's name and 
telephone number on the list transmitted by the Maine Commission on Indigent Legal 
Services to the department and each county sheriff's office constitutes constructive notice 
to each correctional facility and jail beginning on the Monday following the transmission;
7. Directs the commissioner to establish standards for all county jails, holding facilities, 
short-term detention areas and correctional facilities requiring each facility, by January 1, 
2024, to designate space within the facility for attorney-client meetings and the exchange 
of case materials; and
8. Directs the commissioner to establish standards for all county jails and correctional 
facilities requiring each facility, within 18 months of the effective date of the legislation, 
to designate a private and secure space within the facility for residents of the facility to 
store and view materials, including audiovisual materials, related to criminal proceedings 
and post-conviction review proceedings involving those residents.
Part B of the bill directs the State Court Administrator to 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 areas and in secure 
holding areas of each courthouse for confidential attorney-client communications, 
including the review of materials related to criminal cases.  It also directs the County 
Corrections Professional Standards Council to convene meetings of state, county and 
municipal law enforcement agencies, county and municipal jails, the judicial branch, the 
department, 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 regarding the 
processes 
for 
protecting 
and 
ensuring 
the 
confidentiality 
of 
attorney-client 
communications, the policies to be followed in the event that there is a breach of attorney-
client confidentiality and the methods by which attorneys and persons who are residents of 
jails and correctional facilities will be made aware of confidential channels for their 
communications.