A pod at the Somerset County Jail awaits prisoner transfers March 29, 2019, in East Madison.

The release of protected telephone calls between a lawyer and his client incarcerated at the Somerset County Jail have sparked concerns about inmates’ civil rights, and members of the state’s public defense commission say this could be Maine’s worst breach of attorney-client privilege.

Deputy Attorney General Lisa Marchese said her office erroneously received recordings of telephone calls between lawyer Jeremy Pratt and his detained client, who has an open case with her office.

The calls were “innocuous in nature” but their release to prosecutors has potential implications for his defendant’s right to counsel, Pratt said.

Jails and prisons suspended in-person visits in March to try to stop inmates from becoming infected with the coronavirus, which causes the respiratory illness COVID-19. This has made lawyers reliant on telephone and video calls to communicate with detained clients.

Roger Katz

“This is incredibly serious and really awful,” said Roger Katz, an Augusta lawyer currently serving on Maine’s public defense commission. “Hearing this report, this is obviously completely unacceptable and one of the worst things I’ve ever heard about a breach of attorney-client privilege in Maine, in any setting.”

Communications between a lawyer and client are confidential and protected under what is known as attorney-client privilege. Inmates at the Somerset County Jail provide their lawyers’ telephone numbers to jail officials so recordings of those calls by the jail’s phone vendor, GTL — marketed as correction’s “one-stop source for integrated technology solutions” — are not distributed, said Somerset County Sheriff Dale Lancaster.

“When we are requested to do a download of phone conversations, those (lawyer) numbers are blocked and people don’t have access to them,” Lancaster said.

It is standard practice in criminal cases for a prosecutor to request inmate telephone calls made from the jail, said Marchese, who is the criminal division chief at the Office of the Attorney General.

The calls between Pratt and his client were provided in error to Marchese’s office, and the mistake was only discovered as the calls were being reviewed during trial preparation.

“The prosecutor received a large batch of phone calls and was listening to those calls as is routinely done,” Marchese said by email Wednesday. “While reviewing the calls, he recognized the voice of the defense attorney, whom he knew. Recognizing that he had been provided a call in error, the prosecutor immediately stopped listening to the recording and notified the defense attorney.”

Deputy Attorney General Lisa Marchese Portland Press Herald file photo

Marchese said the prosecutor heard Pratt’s voice but did not listen to the conversation between the lawyer and his client. The defense lawyer was then immediately notified.

The Maine Rules of Professional Conduct stipulate lawyers who receive inadvertent disclosure of confidential or privileged information must stop, notify the lawyer for the other side and return or destroy the materials.

The Board of Overseers of the Bar — the state body that governs lawyer conduct — did not respond in time for publication to questions about whether the prosecutor would be required to report the incident.

Officials at the Somerset County Jail were also unaware the facility had released calls protected by attorney-client privilege until Pine Tree Watch contacted jail administrators and the sheriff Wednesday.

A review the same day revealed the inmate had not provided Pratt’s telephone number to the jail, Lancaster said. Pratt’s telephone number has since been added to the inmate’s list.

“This was an unfortunate error. The inmate did not give us that number,” Lancaster said. “The right to counsel is a part of the foundation of this country — of the legal system. That communication and right is extremely important.”

The jail has decided to reopen to in-person lawyer meetings, Lancaster said. Lawyers will be screened with a thermometer and be separated from their clients by a barrier to minimize risk of spreading the coronavirus.

The Office of the Maine Attorney general plans to proceed with the case, and Pratt was working Wednesday to secure a deal for his client.

“I don’t think this was any coordinated effort by the attorney general’s office,” Pratt said.

Knowing of at least one other similar incident, however, Pratt sent out a mass email to members of the Maine Association of Criminal Defense Lawyers to ask if other lawyers were aware of the recording and distribution of their private telephone calls with clients at Maine jails.

At least one Maine lawyer has since come forward and described a similar experience with the Somerset County Jail.

The release of lawyers’ telephone calls may have crossed an important line. A pillar of the Sixth Amendment, which protects a defendant’s right to counsel, is the right to unencumbered communication between lawyer and client, according to Zach Heiden, legal director for the American Civil Liberties Union of Maine.

“Any interference by the government between an attorney and a client in a criminal matter raises serious constitutional questions,” Heiden said.

The release of privileged telephone calls was “very concerning” to the advocacy organization, especially in light of the coronavirus pandemic that has made it impossible for lawyers to visit clients at jails to discuss confidential information.

The ACLU has lobbied nationally and in Maine to stop “exploitive” contracts between private telephone companies and government detention facilities, Heiden said. People give up some of their privacy rights in jail, but they should still maintain a basic right to communicate privately about family or medical matters, he said. And the right to communicate confidentially with a lawyer is a constitutional one.

“If attorney calls are being recorded,” Heiden said, “it does raise the risk of this happening more often.”

Bob Cummings, a Maine defense lawyer and former chairman of multiple American Bar Association committees on professional discipline and conduct, said he was shocked by the implication of telephone calls between lawyers and clients being recorded, let alone distributed.

“No communication between a lawyer and an incarcerated client should be recorded,” Cummings said. “It’s no answer to say, ‘If you’re on a list, we won’t download it.'”

Cummings is a member of the Maine Commission on Indigent Legal Services, which is where the alleged breach of attorney-client privilege was first disclosed publicly during a telephone conference Tuesday. The commission ensures defendants who are too poor to hire lawyers receive legal defense when there is risk of jail or termination of parental rights.

“This is probably as bad a breach of the obligations of prosecutors that I’ve heard in a long time.” Cummings said during the meeting Tuesday. “It’s kind of mind-blowing, actually.”

Pratt’s email was forwarded April 23 to the commission’s executive and deputy directors by Robert LeBrasseur, a defense lawyer and the only nonvoting member of the eight-person commission.

Executive Director John Pelletier said he did not know how many calls between lawyers and clients might have been recorded at the Somerset County Jail.

Pelletier also said that as of Tuesday, he had not contacted the presiding judge or the attorney general’s office about the leaked telephone calls. Heiden said the lack of follow-up by the state agency in charge of ensuring defendants’ rights — more than a week after being made aware of the situation — was a point of concern.

“That’s troubling because we don’t have a public defender system in Maine,” Heiden said. “This is something that the state public defender would take responsibility for.”

Members of the commission were already concerned about the privacy and security of communications between lawyers and clients during in-custody arraignments — a defendant’s first appearance in front of a judge. The lawyer would often discuss a client’s case while at a jail holding area within earshot of other defendants and guards.

The coronavirus has exacerbated the situation, according to Katz. Due to physical-distancing requirements during the COVID-19 pandemic, lawyers were moved out of the jail holding areas. But lawyers’ remote video conversations with clients might still be overheard.

Pelletier said he planned to survey all county jail administrators about lawyers’ communications with clients who are in jail during the pandemic. Depending on the responses, the commission could call an emergency meeting.

“If lawyers can’t communicate in a confidential way,” Heiden said, “then clients are being denied counsel — and that’s unacceptable.”

 

Pine Tree Watch is a weekly local journalism product published by The Maine Center for Public Interest Reporting, a nonpartisan, nonprofit civic news organization based in Augusta. Its public-facing website is pinetreewatch.org.

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