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Why Are So Few Lawyers Willing to Work for the MCILS?

Why Are So Few Lawyers Willing to Work for the MCILS?

Posted by Ed Folsom, March 3, 2024.

Judge Rejects Latest Proposed ACLU/MCILS Settlement.

On Wednesday, February 28, 2024, Superior Court Justice Michaela Murphy rejected the second proposed settlement agreement in the ACLU’s class action lawsuit against the Maine Commission on Indigent Legal Services (MCILS). Because circumstances have changed since the lawsuit was first filed, in March of 2022, Murphy has given the ACLU until March 8 to file a new complaint that splits the plaintiffs into two classes: Those who are entitled to appointed counsel and have had counsel assigned to them, and those who are entitled to appointed counsel but have not had counsel assigned. The trial is to take place in June.

Justice Murphy’s most recent order is part of a long-running saga in which the State’s failure to abide by its sixth amendment obligations has gotten much worse. Two years ago, when the ACLU filed suit, people charged with crimes who were constitutionally entitled to appointed counsel were receiving appointed counsel. The gist of the ACLU’s complaint was that counsel who were being appointed fell below the mark of constitutional effectiveness.

The MCILS is the state agency tasked with providing rosters of attorneys from which the courts appoint counsel. In line with the nature of the ACLU’s complaint against the system, the ACLU focused on leveraging the MCILS into instituting a new set of standards and metrics that attorneys must meet to get and stay rostered, as well as limiting the number of hours rostered attorneys are allowed to work on MCILS cases to prevent them from becoming ineffective through overwork.

The MCILS and the ACLU have been on the same page throughout regarding the need to raise the quality of the attorneys on MCILS rosters. And they have been on the same page regarding the desirability of setting up a “public defender” system that involves salaried attorneys on the State’s payroll, operating out of offices paid for by the State, with support staff paid by the State. They have also agreed throughout that the pay of MCILS-rostered attorneys needed to be increased, in part under the belief that this would help attract and retain a better class of attorney, as the riff-raff were weeded out.

Last year, the hourly rate for lawyers on MCILS rosters was raised from $80.00 per hour to $150.00 per hour. The State set up a rural public defender unit staffed by State-employed, salaried lawyers, and the first public defender office opened in Augusta. The MCILS has instituted new rules regarding training and practice standards for its rostered attorneys. Beginning January 1, 2024, new caseload caps took effect, limiting how many cases rostered attorneys are allowed to handle when doing MCILS work.

In March of 2022, when the ACLU filed suit, the MCILS had around 280 attorneys on its rosters. On February 7, 2024, the MCILS reported 152 rostered attorneys of which 104 were accepting trial level work. A significant number of those attorneys only handle child protective cases, not criminal cases. For example, on January 8, 2024, there were 119 rostered attorneys, but only 37 were accepting adult criminal cases.

When the ACLU filed suit, Maine’s courts were able to find lawyers to appoint. Now, each Monday, Wednesday and Friday, the Maine court system issues a list of criminal defendants entitled to court appointed counsel for whom the courts can’t find counsel to appoint. As of Friday, March 1, 2024, a reliable source, who regularly suffers the tedium of counting the people on these lists, reports that there were 530, with 136 held in jail. Some have been waiting weeks for counsel. Some have been waiting months.

These numbers are well more than five times what they were in mid-October of 2023. Yet the proposed ACLU/MCILS settlement did nothing to address this clear and present deprivation of the sixth amendment right to counsel. Instead, the proposed settlement focused on continuing efforts to improve the performance of counsel on the MCILS rosters and expanding the public defender system.

This is not surprising. The first time the ACLU and MCILS brought a proposed settlement agreement to the court, in September of 2023, Justice Murphy was already concerned about the number of attorneys who had fled the MCILS rosters. The assistant attorney general representing the MCILS acknowledged at that time that the new attorney standards and case caps that were part of the proposed settlement might cause more attorneys to leave the rosters, but he pushed the settlement proposal anyway. And now, here we are.

What Next?

When the ACLU’s case goes to trial, the plaintiffs will be divided into two classes. Both classes will be made up of people charged with crimes who are entitled to court appointed counsel. But one group will consist of those who have had counsel appointed and the other will consist of those who have not. Why do that? Again, when the lawsuit was first filed there were no people whose sixth amendment rights were being violated because the State was failing to assign them counsel. The ACLU’s assertion on behalf of the plaintiff class was that court appointed counsel who were assigned were systematically rendering constitutionally inadequate representation. If the case had proceeded to trial, that is what the ACLU would have needed to prove before any remedy for allegedly inadequate representation could have been ordered.

But the ACLU has never been forced to prove its claims that Maine’s appointed counsel are systematically, constitutionally inadequate. Instead, it has worked with the MCILS on the things that both parties agree they would like to change, purportedly working toward a constitutionally adequate indigent defense system. At least the first of the proposed settlement agreements, if not both, would have put the ACLU firmly in the driver’s seat as the arbiter of whether constitutional adequacy was achieved. If the terms of the agreement were met to the ACLU’s satisfaction during the 4-year pause in the litigation, in the end both sides could declare that constitutional adequacy was achieved. However, if the ACLU were to become unhappy with the way things proceeded under the settlement’s terms, they could return to court for further proceedings.

Now that settlement efforts have broken down and the case is proceeding to trial, the ACLU will be required to prove what it originally asserted – that Maine systematically provides constitutionally inadequate representation for indigent criminal defendants. It remains to be seen whether they can prove that. But now they will also have another kind of sixth amendment inadequacy to prove – that Maine’s system fails to provide any attorney, adequate or inadequate, to defendants who are entitled to an attorney when they are entitled to one. Proving that type of sixth amendment failure, which didn’t even arguably exist when the lawsuit was filed, should be like shooting fish in a barrel.

Why Are There Now No Lawyers to Appoint?

Why have things gotten so bad over the past two years? Why has Maine gone from appointing lawyers some of whom arguably provide constitutionally inadequate representation to not providing any lawyer of any kind to defendants who are entitled to counsel, for weeks or even months on end, often while the defendants are locked up pretrial?

There are a number of reasons why attorneys have left the MCILS rosters in droves. A big part of it is fallout from the government’s response to the COVID-19 pandemic. That response caused a massive caseload backup. As of February 23, 2024, there were 7,278 felonies pending statewide versus 4,074 pending in February of 2019; a 78.6% increase. As for all categories of cases on the Unified Criminal Docket – felonies, misdemeanors, and civil infractions – there were 16,519 pending in February of 2019 and 24,495 pending on February 23, 2024; a 48.3% increase. Lawyers have left MCILS rosters in part because the courts’ efforts to clear those backlogs have resulted in impossible conditions for them.

Lawyers are called into court and must be prepared to proceed on each of a huge number of cases, over-and-over again, in multiple courts often simultaneously. The only possible relief, other than getting out altogether, is to refuse to add a large volume of new criminal cases to the mix. Those who do stay on the rosters get buried with new cases, as fewer and fewer become the only go-to for courts desperately searching for attorneys to appoint. The only way to stem the tide is to leave the rosters. As for the courts, they have no choice but to confine themselves to the rosters when appointing attorneys because non-rostered attorneys lack the MCILS’s official stamp of adequacy.

But backlog-related issues are not the only reason the rosters have thinned. Before the COVID-19-related court shutdowns and curtailments of jury trials began, the ACLU agitated for changes to Maine’s indigent defense system. In 2019, the nationally-recognized Sixth Amendment Center released a report, commissioned by the Maine Legislature, critiquing Maine’s system. Both the ACLU and the Sixth Amendment Center strongly hinted that the only way Maine would be able to achieve sixth amendment adequacy would be to institute a “public defender” system. Members of the MCILS also agitated for a public defender system. A public campaign entered full swing to highlight defects in the existing system and in the lawyers who did its work.

This campaign was demoralizing to the lawyers doing the work for the MCILS. They were successfully portrayed as the unscrupulous chaff of Maine’s legal profession. This was probably politically necessary for those agitating for the changes that have taken place in the meantime. After all, there was no chance the Legislature would pony-up the funds needed for public defender offices and the beefing-up of the MCILS bureaucracy unless the existing system was convincingly made out to be really, really, bad. But while the campaign eventually accomplished some of its promoters’ goals, it badly demoralized the front-line troops. And the demoralization contributed heavily to burnout, which apparently contributed heavily to attorneys leaving the rosters.

The MCILS itself fell under scrutiny for its lack of standards and metrics for rostered attorneys and for failing to adequately police attorney billing practices. The MCILS’s executive director was sacked. Staff were added to the operation with a mandate to institute training protocols, standards, and metrics. In 2021, as the system became more corporatized, the MCILS secured an increase in the hourly rate from $60.00/hr. to $80.00/hr. The campaign to denigrate lawyers on the MCILS rosters continued, as I wrote about at the time, with much of the criticism coming from MCILS commissioners who agitated for a public defender system. But still no funding arrived from the Legislature for a public defender’s office.

Between the demoralizing criticism and the quasi-corporatization of MCILS that brought an additional layer of “paperwork” and aggravation to the lawyers on the rosters, more and more of them peeled off. The MCILS implemented more standards and metrics and continued to push for a public defender system and more pay for lawyers who remained on the rosters.

By January of 2023, the MCILS reported that there were only 65 lawyers on its rosters who were still accepting adult criminal appointments. At that point, the courts were finished with the near shutdown conditions of 2020-2021 and were fully underway conducting criminal trials again. That makes it tough to unravel how much of the thinness of the rosters at that point was due to demoralization, how much was due to the MCILS’s standards, metrics and corporatization campaign, and how much was due to the fear of being crushed by judges trying to clear court backlogs. But if the goal is to get lawyers back on the rosters so the State can stop failing to comply with its sixth amendment obligations by actually having lawyers to appoint, it’s really important to know why lawyers left the rosters so a remedy can be fashioned.

One thing we know for sure, the lawyers aren’t staying off the rosters over the pay. Last year, the Legislature finally got sufficiently freaked-out by the dearth of rostered attorneys to raise the hourly rate from $80.00 to $150.00. Yet, according to the minutes of the January 8, 2024 meeting of the MCILS, there were only 37 lawyers on the MCILS rosters accepting adult criminal cases that day.

We now have a rural public defender operation, a public defender office located in Augusta, and a handful of standardized, metricized lawyers making $150.00/hr. on the MCILS adult criminal defense rosters. Meanwhile, on March 1, 2024, the courts listed 530 indigent adult criminal defendants in need of appointed counsel, 136 of whom were in custody.

The ACLU and the MCILS have been in accord on the MCILS’s standards, metrics, and case caps, just as they have been in accord on the need for a public defender system. What if the push for these measures has played a significant part in why so many attorneys have left the MCILS rosters? You can bet that both the Assistant A.G. representing the MCILS and the attorney for the ACLU will steer well clear of presenting any evidence at trial that might show that’s the case, just as they avoided addressing the rostered-attorneys problem in their proposed settlement agreements.

But if I were the judge, knowing there’s a question whether the ACLU can prove systematic deficiencies in the quality of representation provided by appointed counsel, but knowing that it’s virtually certain they will prove a constitutional deficiency in Maine’s failure to provide counsel at all now, I would definitely anticipate needing to find a remedy for the latter problem. Which would require me to determine why all those lawyers have fled the MCILS rosters. And I might feel very ill-suited, as a judge in a court of law, to solve the problem. Because the litigants before me will have every reason not to present evidence that might lead me to conclude that their collaborative agenda forms a chief reason all those lawyers left the rosters. Which would leave me flying partially blind when fashioning a remedy.

In fact, I would be surprised if it hasn’t occurred to the ACLU that the fewer rostered attorneys there are, the better the prospects that the Legislature will be leveraged into paying for the big, statewide public defender system that the ACLU has wanted all along, as the only way to fill the void. It would be fairly Machiavellian of them to create conditions that drive attorneys off the rosters to achieve that end. But, “The worse the better,” declared predecessor-Bolshevik Lenin, a big fan of Machiavelli. Sure, a bunch of indigent defendants are being harmed now, but those are just eggs that must be broken for that big, beautiful omelet they’re working on.

What’s A Mere Judge To Do?

Best of luck, Justice Murphy, getting to the bottom of the problem and coming up with a remedy. But no matter how it turns out, the result will be far better than leaving it to a non-government organization (the ACLU) to be the sole arbiter and police agency overseeing Maine’s compliance with its sixth amendment obligations, backed by a court order on a settlement agreement.

Any problems with Maine’s indigent defense system are purely the problems of government. Maine State government is solely responsible for them. Maine State government must solve them. Granted, given Maine State government’s track record of dealing with them to date, there’s not much comfort to be drawn from that. But there is far less comfort to be drawn from Maine State Government handing its discretion as to what must be done about it to the ACLU, whose agenda likely had a big hand in creating the system’s current biggest problem.

I guess a lot of lawyers who left the rosters have discovered that there are more desirable things to do in life than to yoke themselves to the system that the ACLU has helped create, even for $150.00/hr. And best of all, they don’t have to!

Where’s that beautiful omelet? Something smells really bad around here.


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