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Maine Indigent Defense – Only 65 Lawyers Still Accepting Adult Criminal Appointments.

Maine Indigent Defense – Only 65 Lawyers Still Accepting Adult Criminal Appointments.

Posted by Ed Folsom, January 5, 2023.

As of December 28, 2022, only 65 lawyers were accepting new adult indigent criminal defense case assignments in Maine, the Maine Monitor reports. The Maine Commission on Indigent Legal Services (MCISL) keeps track of lawyers who meet its requirements to accept indigent case assignments, including cases involving adults charged with criminal  offenses, juveniles charged with juvenile offenses, and parents facing off against the DHHS in child protective cases. In preparation for the most recent MCILS commissioners’ meeting, Executive Director Justin Andrus determined that only 190 attorneys were still “rostered” (approved by MCILS) to accept any type of MCILS case assignment as of December 7. Only 148 were still accepting assignments for trial level work. The remaining 42 were rostered only to act as lawyer of the day or to handle appeals or post-conviction reviews. Again, as of December 28 only 65 accepted new adult criminal cases.

There is a difference between the number of rostered attorneys and the number of attorneys taking case assignments at a given time because attorneys can stop accepting new assignment even while they continue to handle cases already assigned. Attorneys might stop taking assignments temporarily, either to avoid being swamped by assigned cases or to catch up after assigned cases have already swamped their practice. Alternatively, attorneys might stop taking new assignments altogether, because they’re just done with it. There is also a difference between the number of attorneys accepting new case assignments and the number accepting new criminal case assignments because many of the lawyers accepting new assignments are taking on child protective or juvenile cases but not adult criminal cases.

On July 5, 2022, the Maine Monitor ran a story reporting that the number of lawyers accepting indigent defense cases was then at a record low of 224. That same story reported that 410 lawyers had accepted indigent defense appointments in May of 2019. By August 22, 2022, the MCILS reported that only 186 of its then rostered attorneys were accepting new cases of any type.

Here’s the bottom line, based on the numbers above:

  • Between May of 2019 and August 22, 2022, the number of attorneys accepting new appointments of all types dropped 54%, declining from 410 to 186.
  • As of 12/7/2022, the total number of attorneys accepting new appointment for all types of trial level work (excluding lawyer of the day, appeals and post-conviction reviews) was down to 148.
  • As of 12/28/2022, only 65 lawyers are still accepting new adult criminal case assignments.

As for attorneys refusing to take on new case assignments because they are overwhelmed, for the August 22 commissioners’ meeting, MCILS Executive Director Andrus prepared reports showing that 49% of the open MCILS case were then handled by only 33 attorneys (see here, at pdf p.24). Eleven of those lawyers each had more than 301 open MCILS cases. Meanwhile, as the number of attorneys accepting MCILS cases has declined by more than half since 2019, a chart that Andrus prepared for the August 22 commissioners’ meeting showed that the number of MCILS cases increased 14%, from 27,737 in 2019 to 31,640 in 2022 (see here, at pdf p.25).

None of this is good. And instead of getting better, it’s getting worse. As it gets worse, Maine State Government is doing nothing to cure it. The Legislature continues to leave MCILS woefully underfunded, as if the problem will correct itself if we just continue on the current course. Meanwhile, Maine courts are now frequently unable to find counsel for indigent criminal defendants for days or weeks at a time. Indigent accused have been jailed for weeks without the court assigning an attorney to them.

We are witnessing a failure of government in one of the core missions of government. And what is Governor Mills doing to fix things? She’s calling on lawyers to step up and fix the problem for her. Here’s how she put it recently on Maine Public Radio:

“I want to encourage every law firm in the state of Maine to help us out here, get us over the hump. And I want to encourage law firms to designate lawyers in their firm to do work for indigent defendants. Honestly, it not only provides a social service and a constitutional service — a public service — it also gets people in the courtroom. And it provides an experience that you’re not going to get otherwise to become a good lawyer.”

What hump, exactly, are these law firms going to get us over? The State of Maine — that is Maine State Government — has an obligation, under the 6th Amendment to the U.S. Constitution, to provide counsel to indigent defendants whom its executive branch prosecutes in courts that its judicial branch runs. To put it bluntly, individual lawyers and law firms don’t have the constitutional obligation. Maine State Government does.

For many, many years, Maine State Government addressed its 6th Amendment obligations through its judicial branch. Lawyers signed up with court clerks to take indigent defense cases, and the courts assigned cases to those lawyers. If the court had trouble finding a lawyer to take a case (which occasionally happened in some places at some times) the court could simply assign a lawyer to take it. Ethically, the lawyer was stuck with it. Back in the 80’s, you might be a real estate/probate lawyer in Washington County and find that a judge assigned you to handle a rape or even a murder case if there were no other lawyers around to take it.

When a court appointed case was done, the lawyer submitted a voucher detailing time, expenses and tasks performed. A judge in the court where the case was located reviewed the voucher and paid what the judge thought ought to be paid, frequently exercising judicial discretion to chop down the hours by which the applicable rate of $20.00/hr. or $40.00/hr. was to be multiplied. The lawyer eventually got paid from the judicial branch’s budget, the same place the judge’s paycheck came from. To my knowledge, no judge ever complained that a lawyer put in too few hours to provide constitutionally adequate representation.

Well over a decade ago, this system of addressing Maine’s 6th Amendment obligations came under sustained criticism. Some people argued that it failed to ensure that indigent defendants were receiving constitutionally adequate representation. Lawyers could sign up to accept court appointed cases without any specialized training. Some people – especially those who wanted to see Maine move to a public defender system – argued that too many of the lawyers who accepted court appointed cases were doing woefully inadequate work.

If the system was at that point failing to meet the State’s 6th Amendment obligations, much of the government’s failure to meet its obligations fell on the judicial branch. The judges were on the front lines, observing the quality of representation delivered every day and positioned to ensure that deficient attorneys did not receive case assignments. They could also have reported to the Legislature if the system they observed first-hand each day required a fix or a replacement to be made constitutionally adequate. But nearly all blame for the judicial branch, or Maine State Government more generally, falling short of its 6th Amendment obligations seemed to land, if anywhere, on the lawyers doing the work.

In 2009, the powers that be decided that a commission should be created to oversee the qualifications and training of lawyers who do indigent defense work, and to pay them out of its own budget. This new arrangement relieved the judicial branch from reviewing vouchers and deciding what amount court appointed lawyers should be paid from the judicial branch’s money pot, along with the accompanying appearance of impropriety. The arrangement also promised the lawyers a more stable pay arrangement — they had at times been forced to wait months to be paid under the old arrangement. Those who advocated for the new arrangement also told the lawyers that the new system would raise their professionalism and respectability, leading to increases in their pay. The MCILS was born.

But a rift remained among the powers that be as to what should happen next. Some will never be happy until Maine adopts a full-blown public defender system. Others believe that paying private sector attorneys to handle indigent defense cases works pretty well, and that public defender systems have their own sets of problems, including their expense. Maybe if the MCILS could tweak the existing system by providing better training and doing a better job overseeing lawyer performance, that’s all we would really need.

As the judicial branch offloaded the indigent defense hot potato, the Legislature placed it in the hands of the executive branch, to be handled by the MCILS. The MCILS was to consist of a group of appointed commissioners responsible for policy, rule-making, and operations oversight, and an operations wing responsible for executing the commissioners’ directives. As for the operations wing, the Legislature funded it to consist of an executive director, a deputy executive director and an accountant. This team of 3 was tasked with providing all the training, oversight and payment of lawyers that might be necessary for the State to meet its 6th Amendment obligations. To those in favor of a public defender system, this set-up must have been a dream — it was bound to fail. And fail it did.

The cost of the MCILS increased significantly over time. To anyone for whom the main attraction of the MCILS system, versus a public defender system, was its relative cheapness, this wore away much of the MCILS’s luster. Those in favor of a public defender system continued to press their case. In 2018, the Legislature commissioned the Massachusetts-based Sixth Amendment Center to study and report on the constitutional adequacy of Maine’s indigent defense system, applying recognized national standards to its analysis. In 2019, the Sixth Amendment Center issued its report. The report found Maine’s system lacking. Although the report faulted certain practices of Maine’s judicial branch along with the performance of the MCILS, the thrust of the public blame for what was wrong fell on the the Executive Director of the MCILS and the lawyers doing court appointed work.

By 2018, compensation for MCILS work had been raised to $60.00/hr. The Sixth Amendment Center found that the top billing MCILS attorney in 2018 was paid $275,612.00, which amounted to 88 billed hours each week for the 52 weeks in 2018. This did not look good. The Sixth Amendment Center also found that many attorneys were not providing constitutionally adequate representation, that they were inadequately trained, and that MCILS supervision and fiscal oversight was deficient. A political pig pile ensued. Out went the MCILS’s Executive Director. On came a series of stories in the press about lawyers ripping-off the system and lawyers who were allowed to continue doing MCILS work despite Bar disciplinary histories and/or their own ongoing legal troubles.

The Sixth Amendment Center recommended improved MCILS training and oversight of court appointed counsel, the establishment of an appellate level public defender system statewide, and a trial level public defender system in Cumberland County. In the wake of the report, there were increased calls for a public defender system, including from some of the MCILS’s own commissioners. And those commissioners — appointed functionaries of the very same executive branch of Maine State Government that is responsible for meeting the State’s 6th Amendment obligations —  had some very unkind things to say to and about the lawyers who do work for the MCILS (some of which are discussed here). That was demoralizing.

The Legislature did not immediately fund a public defender operation. They did, however, add staff to the MCILS. Its new Executive Director got serious about standards, metrics and fiscal oversight. Pretty soon, it started to look, to the lawyers who approached indigent defense work as some sort of weird labor of love — who believed in it as a noble cause — as if the boss man had not the least bit of appreciation for them as professionals. In other words, they did the work despite the low pay, the low prestige and the stress, because they liked (loved?) their professional jobs. But it’s one thing to be held in relatively low esteem by The Man. It’s entirely another to be treated as rubbish, standing in the way of progress, by those you thought were down with your cause.

And not only that, but starting in early 2020, and continuing for more than a year, the judicial branch essentially shut down all jury trials for the pandemic, causing a massive criminal case backlog.That leaves the lawyers who are still doing MCILS work carrying a huge backlog of cases. It also leaves a dwindling number of lawyers hanging in to handle all the new cases. That makes the job just suck. To see how much it makes the job suck, check out the comments from a survey of MCILS lawyers taken in August of 2021, here at pages 34-86.

Many MCILS lawyers have now moved on to other areas of practice, found other things to do. The locus of control has shifted. And as it has shifted, the State finds itself unable to secure counsel for indigent defendants, some of whom wait, locked up for upwards of a month without counsel. And many of the lawyers who continue to take MCILS cases are carrying caseloads way more than the Sixth Amendment Center would approve of. How does that square with the State’s constitutional obligation to provide adequate counsel for the indigent accused? If the State’s failure to meet its constitutional obligations has really been the lawyers’ fault all along, I guess the State is doing a bang-up job fixing the problem, because it sure is doing a great job running-off all the lawyers.

And now Governor Mills is calling on Maine’s law firms to pitch-in to get the government “over the hump.” MCILS dabblers (as opposed to its hard core) were the first to figure out that they didn’t need MCILS work to maintain their practices — that complying with MCILS regs costs them too much time and hassle for the low return. Now the Governor is trying to bring in a better class of dabblers – MCILS dabblers from law firms — to get her over her undefined hump. But what is this hump, and what’s on the other side?

If these were pre-MCILS days, the courts might just start assigning the cases to whatever lawyers are around. But the Sixth Amendment Center’s report raises sensitivities about doing that. The MCILS is now the recognized credentialing entity for MCILS lawyers. Without MCILS credentials, how can a lawyer possibly meet 6th Amendment standards for indigent defense adequacy? But if any of the law firms Governor Mills has called upon do get their lawyers credentialed by the MCILS, that will make those lawyers ripe for court appointments as bona fide, certified adequate counsel. And once those lawyers yoke themselves to the government’s cart, they can expect the cart to be filled quickly with a load of cases to be hauled at the current $80.00/hr. rate, till those lawyers manage to work their way out from under.

Ya, that’s the ticket. Do a bit of charity work for the government, to relieve it of its constitutional burden. You’ll definitely find it rewarding — No way you could end up being blamed for whatever goes wrong.

Once we’re on the other side of Governor Mills’ hump, will the stable of lawyers handling MCILS cases have been replenished with brand-spanking-new, highly competent counsel, willing to build well-staffed indigent defense practices around an $80.00/hr. billing rate?

Or will the bulk of Maine’s indigent defense work be handled by a public defender system on the other side of the hump? If so, don’t expect it to be the end of Maine’s indigent defense troubles. Every lawsuit the ACLU has ever brought alleging a state’s failure to meet its 6th Amendment obligations has alleged the inadequacy of a public defender system, except the lawsuit the ACLU is currently pursing against Maine (because Maine’s the only state without a PD system).

Or will problems on the other side of the hump look pretty much the same as on this side? If so, will Maine State Government’s failure to meet its 6th Amendment obligations finally be seen as the government’s failure? Not if they can still get away with blaming the lawyers.