An Act to Protect the Confidentiality of Attorney-Client E-mail Communications for Residents of Jails and Correctional Facilities
Maine Legislature, Session 131, LD 2159
Committee: Judiciary
Sponsors: CARNEY, MOONEN
Amends: 4 MRSA §1804, 5 MRSA §200-N, 15 MRSA §709, 15 MRSA §714, 34-A MRSA §1208, 34-A MRSA §1402

Legislative Document
No. 2159
S.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.
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  4 MRSA §1804, sub-§3, ¶P, as enacted by PL 2023, c. 394, Pt. A, §3, is 
amended to read:
P.  Develop and maintain a registry of names, telephone numbers, e-mail addresses 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, e-mail addresses 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, e-mail addresses and other contact information are confidential.
Sec. 2.  5 MRSA §200-N, as enacted by PL 2023, c. 394, Pt. A, §4, is amended to 
read:
§200-N.  Confidential attorney-client communications
1.  Policies.  By January 1, 2024, the 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 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, view or read 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. 3.  15 MRSA §709, sub-§4, as amended by PL 1979, c. 701, §11, is further 
amended to read:
4.  Intercept.  "Intercept" means to hear, view, read or record or aid another to hear, 
view, read or record the contents of any wire communication or oral communication 
through the use of any intercepting device by any person other than:
A.  The sender or receiver of that communication;
B.  A person within the range of normal unaided hearing or subnormal hearing 
corrected to not better than normal; or
C.  A person given prior authority by the sender or receiver.
Sec. 4.  15 MRSA §714, as enacted by PL 2023, c. 394, Pt. A, §5, is amended 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 or read the intercepted oral communication or 
wire communication and did not immediately discontinue viewing or, listening to or 
reading 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 
party 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 or read the intercepted oral communication or 
wire communication and saw or, heard or read 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.
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.
1-A.  Applicability of subsection 1.  Subsection 1 applies to an intercepted oral 
communication or wire communication for which:
A.  The sender or recipient of the 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
B.  The resident under paragraph A demonstrates that the jail or correctional facility:
(1)  For an oral communication, had actual or constructive notice of the attorney's 
name at the time the communication was made;
(2)  Had actual or constructive notice of the attorney's name and telephone number 
at the time the communication was made, if the communication involved the use 
of a telephone and the communication was made directly to or from the attorney's 
telephone number; or
(3)  Had actual or constructive notice of the attorney's name and e-mail address at 
the time the communication was made or intercepted, if the communication 
involved the use of e-mail and the communication was made directly to or from 
the attorney's e-mail address.
1-B.  Constructive notice.  For purposes of this section, the inclusion of an attorney's 
name,  telephone number or e-mail address 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 of the 
name, telephone number or e-mail address 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. 5.  34-A MRSA §1208, sub-§8, as enacted by PL 2023, c. 394, Pt. A, §13, is 
amended to read:
8.  Standards regarding attorney-client communications.  The commissioner shall 
establish mandatory standards:
A.  By January 1, 2024, for 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, e-mail addresses 
and other contact information for attorneys who provide legal services to residents 
of the facility and that the attorneys' names, telephone numbers, e-mail addresses 
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, e-mail address 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 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. 6.  34-A MRSA §1402, sub-§14, as enacted by PL 2023, c. 394, Pt. A, §14, is 
amended to read:
14.  Standards regarding attorney-client communications.  The commissioner shall 
establish mandatory standards:
A.  By January 1, 2024, for 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, e-mail 
addresses 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, e-mail addresses 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, e-mail address 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 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.
SUMMARY
Public Law 2023, chapter 394 specified the consequences for the interception of an 
oral or wire communication, including a telephone call, between a person residing in either 
a jail or in an adult or juvenile correctional facility and an attorney; these communications 
are confidential.  This bill extends those consequences to an intercepted attorney-client e-
mail communication if the resident can show that the jail or correctional facility had actual 
or constructive notice at the time the e-mail communication was made or intercepted of the 
attorney's name and the attorney's e-mail address and if the communication was made 
directly to or from that e-mail address.  Similar to Public Law 2023, chapter 394, the bill 
provides that:
1. The contents and existence of the communication are not admissible in a criminal 
proceeding, including a post-conviction review proceeding;
2. A person who viewed, listened to or read the communication and did not 
immediately discontinue doing so as soon as the person had sufficient information to 
determine that the communication was protected by attorney-client privilege 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 post-conviction 
review proceeding; and
3. A person who viewed, listened to or read the intercepted communication and saw, 
heard or read information that may be relevant to a pending or anticipated charge against 
the resident or a defense the resident may assert, or that may lead to the discovery of that 
evidence, is disqualified from participating in an investigation of the resident or appearing 
as a witness in the pending or anticipated criminal proceeding in which the resident is a 
defendant, including a subsequent post-conviction review proceeding on the pending or 
anticipated criminal proceeding.
The bill also makes technical changes to remove previously expired deadlines.