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What’s Up With This ACLU Lawsuit Against the MCILS?

What’s Up With This ACLU Lawsuit Against the MCILS?

Posted by Ed Folsom

September 16, 2023

A story in today’s Portland Press Herald raises, for me, a serious question of the competence, candor and honesty of the Assistant Attorney General who represents the Maine Commission on Indigent Legal Services (MCILS) and its commissioners, in the pending lawsuit filed against them by the ACLU. The MCILS is the agency of Maine State Government responsible for handling everything involved in qualifying attorneys to accept indigent defense work, paying them for it, and overseeing their performance. With the exception of a handful of “rural defenders” who have only recently been brought on line, Maine has no salaried public defenders on the State’s payroll. Otherwise, Maine satisfies its indigent defense obligations strictly through attorneys who agree to do the work for the MCILS.

As background, the ACLU filed its lawsuit on March 1, 2022, alleging that Maine is failing in its constitutional obligation to provide adequate legal representation for indigent criminal defendants. The ACLU is represented by its own counsel and attorneys working for them on a pro bono basis. The MCILS and its commissioners are represented by the Maine Attorney General’s Office. In recent months, the two sides worked out a proposed settlement agreement that they presented to Justice Michaela Murphy, in the Kennebec County Superior Court, on August 21, 2023. On August 29, Justice Murphy held oral argument, where she had the opportunity to question the lawyers for both sides as to why and whether she should accept the terms of the settlement. In an Order dated September 13, 2023, Justice Murphy rejected the proposed settlement. The parties now have until the end of this month to either reach another settlement agreement acceptable to the Court or get ready for trial.

Justice Murphy rejected the proposed settlement for a number of reasons. If she had accepted it, the litigation would have been placed on hold for 4 years. During that time, the ACLU would have monitored the State’s progress toward what the ACLU deems to be an acceptable level of representation for the indigent accused. But the most urgent problem Maine’s system faces right now is the lack of attorneys willing to work for the MCILS any longer. While the ACLU has largely been focused on the quality of representation –functionally inadequate representation — Maine has developed the problem of no representation, in fact. Lawyers have dropped off MCILS rosters to the degree that there is simply no lawyer to appoint for large numbers of indigent defendants, for significant periods after they first appear in court. The proposed settlement put forth by the ACLU and the Attorney General’s Office would not have allowed anyone harmed during the 4-year freeze on the lawsuit to bring an action against the State alleging harm arising from systemic flaws in Maine’s system.

In other words, the ACLU claims that Maine’s problems are systemic — endemic to a flawed system. But what would happen if Justice Murphy were to have accepted the proposed settlement agreement? If the problem of too few lawyers to do the work were to continue or worsen, we should expect a number of indigent defendants to be harmed by having no lawyer appointed to represent them for significant periods. At that point, the ACLU would be part of Maine’s system — it would officially oversee Maine’s progress toward the goals that the ACLU wants to see met, under endorsement of Maine’s courts. So, their proposed settlement provided that anyone who might suffer actual harm from the system that the ACLU would then be part of would not be allowed to sue over that harm. That’s a neat arrangement. Especially considering the very real prospect that the harm might actually be caused by damage that the ACLU inflicts on the system in pursuit of its goals.

The ACLU has been very focused on setting high standards for MCILS attorneys and on ensuring that Maine moves to a system that includes State-employed, salaried public defenders. The standards already in effect have been difficult for attorneys to meet, given the realities of Maine’s court system. It’s a topic for another day, but Maine’s courts long ago began emphasizing plea agreements over criminal trials, injecting judges directly into plea negotiations and providing very little jury trial time for criminal cases. So, when MCILS requires a certain number of trials within a certain time frame as a condition of being rostered, it raises serious issues about how attorneys are supposed to meet the requirements. Add to this that Maine courts were almost completely closed down for jury trials for the better part of 2 years during the COVID pandemic, and it just exacerbates the problem. And the proposed settlement agreement calls for even stricter and more complex standards.

Justice Murphy keenly perceives the problem, as reflected in the following passages from a story in today’s Portland Press Herald:

“At last month’s hearing, [Assistant Attorney General] Magenis defended the agreement against Murphy’s concerns that the proposal did nothing to address a severe shortage of private attorneys willing to accept cases from the commission. Murphy said some provisions in the agreement could actually have made things worse; she wondered if proposed rules for attorney performance and caseload standards might scare off counsel.

Magenis said there’s no evidence of this, but it’s possible ‘the initial effect may be that additional lawyers remove themselves from the roster.’

‘Nobody knows what’s going to happen,’ he said, according to court transcripts.

‘But why would I approve something that you acknowledge might make things worse?’ Murphy had said. ‘And we’ve seen unintended consequences, good faith efforts that have failed. Good faith efforts by the other branches, by MCILS that have made things worse or not addressed the heart of the problem, which is that we just don’t have people right now representing people who are entitled to counsel.’”

Now, I am still in communication with quite a few lawyers who do work or have done work for the MCILS. And I can tell you that a number of them have been driven off the rosters by the standards already in place, by a sense that the MCILS is nit-picky and difficult to deal with, and by the fact that every lawyer who remains on the rosters gets overwhelmed with indigent appointments because so few lawyers have chosen to remain on the rosters. This is no secret. In fact, the lawyers who have left the rosters are quite open about why they’ve left, and the ones contemplating leaving are quite open about why they’re contemplating leaving. Justice Murphy is obviously aware of the problem. So how can AAG Magenis not be aware of it? How can AAG Magenis, who reached a proposed settlement with the ACLU on behalf of his client, the MCILS, not be aware of the problem that certain MCILS standards pose for the MCILS’s attempts to attract attorneys to its rosters, while he works out a settlement on his client’s behalf that calls for stricter and more complex standards to be imposed?

To me, this is a serious question. Mind you, I’m not accusing AAG Magenis of anything. But for him to assert that there’s no evidence that the attorney performance and caseload standards he proposes as part of his settlement might scare-off counsel flies in the face of widely known facts. What form does AAG Magenis suppose “evidence” of the problem would take? Something very different from the word of current and former MCILS attorneys as to why they have fled or are contemplating fleeing MCILS rosters, apparently.

So, while I’m not accusing AAG Magenis of anything, I do think his assertion to the Court at the August 29 hearing raises serious questions that need to be answered. Because, God forbid that a lawyer might shade the truth a bit to get a stamp of approval on a settlement agreement. That would violate Rule 3.3 (a)(1) of the Maine Rules of Professional Conduct, which requires lawyers not to “knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.” And if a lawyer were to fail to be aware of “evidence” that is in fact widely known to exist and that bears directly on the subject of his client’s representation, that would implicate Rule 1.1, which states: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

The thing is, not only is Justice Murphy aware of the problem that the imposition of certain standards poses for the MCILS’s attempts to attract and keep attorneys rostered, former Maine Supreme Judicial Court Associate Justice, and current MCILS Commissioner and lawsuit defendant, Donald Alexander, is also well aware of it. As he put it in a September 10, 2023 memo to the MCIS and others:

“MCILS is proposing to change its rostering experience requirements so litigation experience as a prosecutor or civil trial lawyer counts for nothing – only criminal defense experience counts. Not very welcoming to former prosecutors and current, experienced civil trial lawyers who can provide high quality representation to indigent individuals needing assistance.

In the circumstances, and respecting the good quality of the Maine Bar, our qualification and rostering needs to be open and welcoming to new attorneys and existing attorneys. Instead, our qualification and rostering requirements are excessively complex and demand experience that, because of COVID issues, have been unachievable now for going on four years. The complexity poses problems for competent attorneys willing to take cases, and equal problems for those making assignments – judges, court clerks, attorneys for the day, financial screeners – to determine if an attorney can take an assignment with several charges.”

So, really. What’s going on here? No wonder the ACLU wanted nobody to be allowed to assert a deprivation of the right to counsel based on any systemic problems that the ACLU might create or exacerbate. Allowing that to happen wouldn’t make the ACLU look very good now, would it?