OPEN LETTER RE MAINE LD 1433 PUBLIC DEFENDER BILL. (Article)

OPEN LETTER RE MAINE LD 1433 PUBLIC DEFENDER BILL.

Posted by Edmund R. Folsom

Date: December 4, 2015

This follows up my earlier post, “A Public Defender Administering Contracts for Maine?” located here: https://edfolsomlaw.com/2015/10/a-public-defender-administering-contracts-for-maine/ Most of the concerns I have seen expressed over LD 1433, “An Act To Create the Office of the Public Defender and Amend the Duties of the Commission on Indigent Legal Services,” http://legislature.maine.gov/legis/bills/bills_127th/billtexts/SP054001.asp, have not addressed the bill’s particular language. What follows is my attempt to address concerns about the bill by examining its particular provisions. This is an open letter to anyone concerned with the issue, in essentially the same form as the letter I have directed to John Pelletier, Esq., Executive Director of the Maine Commission on Indigent Legal Services in response to his request for comments.

Re: LD 1433

To whom it may concern:

I am writing to express concerns about LD 1433, “An Act to Create the Office of the Public Defender and Amend the Duties of the Commission on Indigent Legal Services.” Most of the feedback I have seen on the bill from criminal defense attorneys has focused on the bill’s potential to lead to indigent defense contracts going to low bidders, for defense services to be rendered in bulk for a bulk rate of pay. If the bill is intended to lead to that result or will necessarily lead to that result, that alone is ample reason to oppose it, for the reasons many other defense attorneys have already expressed. But I am not sure the bill will necessarily lead to that result. My basic problem with this bill is that it is impossible to know how the system it would create would work in practice. Because of that, I don’t believe the bill justifies itself. All it guarantees is some disruption of the status quo and the creation of a new layer of bureaucracy, but to what end? What exactly about the status quo needs to be fixed, and how exactly will this bill fix it? If those questions can’t be satisfactorily answered, how do we know this bill won’t create more problems than it will solve?

In describing some of the contradictions that bother me in LD 1433, below, I will refer to passages in the bill by their statutory designations within the bill. First of all, one of the bill’s stated purposes (in its title) is to “Create the Office of the Public Defender.” The bill does in fact create such an Office and it provides that the Office is to be staffed by a Chief Public Defender, two Deputy Public Defenders and “staff, including counsel…necessary to perform the functions of the Office of the Public Defender and to implement the provisions of this chapter.” 4 M.R.S. §1807(2)(D). The bill defines the term “staff counsel” as “an attorney in the Office of the Public Defender who provides indigent legal services under this chapter and is an employee of the State.” 4 M.R.S. §1802(7). The bill also provides that the Chief Public Defender has the responsibility to “[d]etermine when and where it is necessary to establish district offices for the Office of the Public Defender consistent with the policies and procedures of the Department of Administrative and Financial Services.” 4 M.R.S. §1807(3)(F). From all this, it looks as if LD 1433 might allow the creation of a public defender’s office the likes of which is found everywhere else public defender’s offices exist, with an organizational head responsible for hiring attorneys to work as government-employed public defense counsel, in offices staffed by support personnel who are also government employees. That, however, is contradicted by the part of LD 1433 that states the Chief Public Defender is “[t]o the maximum extent possible use contracts providing indigent legal services as required in this section.” 4 M.R.S. §1807(3)(B). The bill does not say that the Chief Public Defender is to use contracts to provide indigent legal services to the greatest extent feasible, consistent with the purposes of providing effective assistance of counsel, rendered by qualified, competent counsel, while ensuring a fiscally responsible system free from undue political interference– or anything of the sort. Instead, it says the Chief Public Defender is to use contracts “to the maximum extent possible” (emphasis added). Won’t it always be possible to provide indigent legal services by use of contracts? I think so, because as matters currently stand, every lawyer who provides indigent legal services in this State does so under a contractual agreement, with most agreeing to perform the work at a set hourly rate and the State agreeing to pay them that same hourly rate. Given that all indigent defense services are currently provided under contract, the maximum extent to which it is possible to provide indigent legal services under contract is very obviously 100%. That makes me wonder what the point is of all the language in the bill about the Chief Public Defender setting up offices and hiring staff counsel to provide indigent legal services, when doing that would cut against the Chief Public Defender’s mandate to provide indigent legal services using contracts “to the maximum extent possible.” That’s one thing that bothers me about the bill.

Because the Chief Public Defender is to use contracts to the maximum possible extent, and because it is possible to provide 100% of indigent legal services by contract, it looks as if LD 1433 might really only be about setting up a new bureaucratic system of contract administrators and calling them the “Office of the Public Defender.” If so, what’s the point? Is it simply to shift functions currently handled by the Maine Commission on Indigent Legal Services (MCILS) to a new bureaucratic entity named the Office of the Public Defender, or do LD 1433’s proponents envision the bill bringing about a new and different type of contractual arrangement? If the bill is intended to bring about a new and different type of contractual arrangement, what kind of arrangement is it intended to bring about, why is that new arrangement desirable, and how do we know the bill will actually achieve the desired end? A lot of people I know fear that the point is to bring about a statewide system of fixed bulk-rate for bulk-defense service contracts to be awarded to the lowest bidder. Maybe that is the intent, but again, I’m not sure.

While the bill takes a number of responsibilities from the MCILS, it leaves that entity with the responsibility to “[e]stablish contract guidelines as well as processes and procedures to review contracts entered into between the Office of the Public Defender and contract counsel using best practices for contracts providing indigent legal services.” 4 M.R.S. §1804-A(2)(D). Maybe this language should encourage those who otherwise fear the coming of bulk-rate/bulk-service/low-bidder contracts, because those types of contracts are clearly not consistent with “best practices for contracts providing indigent legal service.” In fact, as you might well be aware, those types of contracts have been banned in other jurisdictions for the damage they have caused to the system of providing constitutionally required indigent defense services. It is hard to see how the MCILS could approve of such contracts consistent with its mandate in 4 M.R.S. §1804-A(2)(D). But if MCILS guidelines would not include bulk-rate/bulk-service/low-bidder contracts, what types of contractual guidelines would result from the mandate of §1804-A(2)(D)? To my knowledge, there has not been widespread criticism in other jurisdictions of contracts that involve attorneys agreeing to handle individual cases at a set hourly rate. Would MCILS set guidelines for the establishment of that type of contractual arrangement, paralleling the contractual arrangements already at work in Maine? If so, what is the point of LD 1433?

Then again, I am also not sure that the MCILS will be in control of the types of contracts used by the Office of the Public Defender, or that they will be able to ensure that the contracts the Office of the Public Defender uses will be consistent with “best practice standards.” Although the bill puts the MCILS in charge of establishing contract “guidelines,” it does not require the Chief Public Defender to follow those “guidelines.” Instead it gives the Chief Public Defender the power to “contract for the services of private attorneys in the delivery of indigent legal services…in accordance with the standards established by the [MCILS] and the contract policies established by the Department of Administrative and Financial Services.” 4 M.R.S. §1807(4)(A). The “standards” the MCILS is tasked with creating are set forth in 4 M.R.S. §1804-A(1) and include minimum training and qualification standards for attorneys, “weighted caseloads” standards, standards to evaluate contract counsel, etc. Those “standards” do not include the contract “guidelines” that the MCILS is to formulate under §1804-A(2)(D). From this, I take it that the Chief Public Defender will have the power to enter into contracts with attorneys who meet attorney training and certification standards set by the MCILS, under contractual policies established by the Department of Administrative and Financial Services. That would leave the Chief Public Defender free to reject or ignore contract “guidelines” formulated by the MCILS as long as the “contract policies” formulated by the Department of Administrative and Financial Services are followed. That makes me wonder whether the entity that will set the contract standards or policies actually used for contracting with indigent defense counsel is an entity whose focus will be on the financial bottom line (as in low-bidder), as opposed to policies that promote the rendering of competent representation to the indigent (as in constitutional mandate). That, I don’t find encouraging.

The bill raises other concerns for me, too. For instance, the bill gives the Chief Public Defender the power to “[d]elegate the legal representation of any person to any member of the Maine State Bar Association eligible under section 1804-A in accordance with standards established and maintained by the [MCILS].” 4 M.R.S. §1807(4)(C). In order to render indigent defense representation in Maine, an attorney will need to be a dues paying member of the Maine State Bar Association? Really? And then there’s the part about the Governor– not the legislature, but the Governor– having the power to remove the Chief Public Defender for cause. See 4 M.R.S. §1807(2)(A). Yet, one of the stated purposes of the bill, set forth as purpose number 2 in its “Summary,” is to “[e]nsure that the system is free from undue political interference and conflicts of interest.” Why give the Governor the power to meddle in the operations of the Office of the Public Defender, to the extent of having the power to remove the Chief Public Defender, given the potential for political interference and conflicts of interest inherent in such power? What if the Chief Public Defender, out of concern for competency of counsel, favors arrangements for the provision of indigent legal services that the Governor does not think are cost-effective enough? Would that be cause for removal?

Right now, we have a very good system of indigent defense representation in Maine. The system brings in new, young attorneys with tremendous energy and allows them to develop their skills. It also results in many very good attorneys choosing to stick around to handle serious, difficult cases for the State, and to mentor younger attorneys, long after those experienced counsel could have walked away from the low-paying aggravation that often accompanies indigent defense work. Some attorneys are dedicated enough to continue on a steady diet of indigent defense representation for their entire careers. Most scale back on the court-appointed cases over time, or walk away from the work altogether at some point, but they have the choice to keep their hand in it on a relatively small scale if they wish. This bill has a potential to completely disrupt, and maybe entirely destroy, that existing system– a system that has developed from grass roots, over a long period, and has been graced by the talents of many truly outstanding and dedicated attorneys. There is a strong potential for LD 1433 to move us to a much more industrial approach to the delivery of indigent defense services; an approach that consolidates those services into the hands of fewer attorneys who are willing, or are forced by unfortunate financial circumstances, to dine steadily on the paltry pickings of an indigent defense attorney. If we go down the road of widespread bulk-service/bulk-rate/low-bidder contracts, the project will fail as surely as it has everywhere else it has been tried. And after the project has crashed and burned, the marketplace of hundreds of attorneys who currently keep their hand in indigent representation in Maine will have been smashed– it won’t be there to clean up the mess. At that point, we might very well have to institute a full-bore, and expensive, actual public defender’s office, with attorneys hired specifically for and trained in indigent defense, working on the State’s payroll, in offices throughout the State, mirroring Maine’s District Attorney system. Will that be the ultimate result of LD 1433? Who knows? And that is exactly the problem…No bill should pass unless it is aimed at clearly defined goals and unless its proponents have made a convincing case that it will achieve those goals. LD 1433 does not meet that test. With LD 1433, I think we are dealing with a pig in a poke. It will be interesting to see who’s buying.

Sincerely,

Edmund Folsom

UPDATE 12/22/15.

Today, the Board of Governors of the Maine State Bar Association released the following statement declaring the MSBA’s opposition to this legislation:

Dear MSBA Member,

The MSBA Board of Governors has voted to oppose L.D. 1433: An Act to Create the Office of Public Defender and Amend the Duties of the Commission on Indigent Legal Services. The Maine State Legislature will consider L.D. 1433 in the upcoming 2016 session that will convene on January 6 and run through mid-April. If enacted, this bill would create the Office of the Public Defender, to be made up of a Chief Public Defender, two Deputy Public Defenders, and staff attorneys, who would work in concert with contract attorneys and the Maine Commission on Indigent Legal Services (“MCILS”) to provide representation to indigent defendants in criminal cases, and parents and custodians in child protective proceedings.

The Sixth Amendment to the U.S. constitution, which applies to the states through the Fourteenth Amendment, provides the right to the assistance of counsel in criminal cases. The U.S. Supreme Court has further interpreted the Sixth Amendment to provide the right to counsel in juvenile cases, and through statute, Maine has incorporated the right to counsel in child protective proceedings. Maine currently meets these obligations with court-appointed attorneys who are paid through the Maine Commission on Indigent Legal Services. While these obligations require basic competent representation, Maine attorneys have a long tradition of providing high quality, impassioned representation through this court-appointed work.

L.D. 1433 threatens Maine’s ability to meet its constitutional obligations. L.D 1433 threatens to eliminate that high quality of representation by enacting a system that grants representation contracts to the lowest bidder. If enacted, L.D. 1433 would require attorneys who supplement their practice with court-appointed cases to bid for this contract work, adding a substantial hurdle to the practice of indigent representation, and likely eliminating a large swatch of attorneys who will not have the resources to participate in the contract process. The Maine State Bar Association feels that L.D. 1433 will fail to meet Maine’s Constitutional obligations, and will threaten a long tradition of high-quality representation of indigent clients.

L.D. 1433 is vague and will cause substantial uncertainty to the practice of law in Maine, and threatens our rural community legal practices. L.D. 1433 is unclear on how the Office of the Public Defender will interact with the Commission on Indigent Legal Services, fails to specify the process by which attorneys will be able to apply for contract work, is unclear on how many cases would be handled by Office of the Public Defender Staff as opposed to contract counsel, and does not include specifics on case load management such as caps or monitoring systems. While many of these specifics could be fleshed out in rules, the language of L.D. 1433 is sufficiently vague that it will cause substantial uncertainty to the practice of law in Maine. The court-appointed system provides meaningful revenue to some of our attorneys and particularly some in the rural parts of our State. Removing all or part of this revenue stream from their practices could jeopardize their financial stability and their ability to continue to practice in the rural parts of our state.

L.D. 1433 does not guarantee cost savings to the State. Additionally, while we are to understand that a primary goal of this bill is cost savings, there are not enough specifics in the language of the bill to provide clear evidence that any cost savings will be affected. The bill would create a new agency to be staffed with several new full-time professionals who will require administrative staff, facilities and benefits. No evidence has been produced that assures this model will be more cost-effective than the current court-appointed system.

In voting to oppose the legislation, the Board concluded that the potential benefits and consequences of the proposal are difficult to assess in its current posture and would need substantial overhaul before it could be decided on by members of the legislature in an informed manner.

On behalf of the MSBA Board of Governors,

Angela Weston