The Maine Commission on Indigent Legal Services says it is in an emergency situation and plans to ask the state for a $13.3 million supplemental appropriation to increase the hourly rate it pays lawyers in a bid to bolster its dwindling roster of attorneys willing to represent low-income Mainers.
Maine is the only state in the nation without a public defender’s office. Although the state recently agreed to create its first team of public defense attorneys, most cases still will be covered by private attorneys whom the state pays to represent Mainers who can’t afford their own lawyers. The commission oversees the list of attorneys.
The funding request, which the commission will vote on next week before submitting it to the state, would increase the hourly rate for those attorneys from $80 to $150 starting in October and running through the end of the fiscal year in June. Attorneys use these reimbursements to pay themselves, and for overhead costs like office expenses and staffing.
Executive Director Justin Andrus told the Government Oversight Committee on Wednesday morning that the commission’s list of available attorneys is extraordinarily short. There were 163 lawyers accepting new cases as of Tuesday – down from 280 available attorneys in January and 410 attorneys in 2019.
The drop in attorneys and a steady increase in new cases is making it more difficult for the commission to fulfill its constitutional obligation to provide counsel to poor Mainers.
Andrus told lawmakers that he hopes a pay increase will bring back some of those attorneys who have left. He said that the $150-an-hour pay addresses a disparity between defense attorneys and state-funded prosecutors. He estimated that the “least expensive assistant district attorney” earns nearly $75 an hour, without financial responsibility for staff or an office.
In order to get any new money from the state budget, the governor or a majority of each legislative caucus would have to agree to call a special legislative session.
SPECIAL LEGISLATIVE SESSION REQUIRED
A spokesperson for Gov. Janet Mills did not directly say whether the governor would support a special session. In an emailed response Wednesday, Lindsay Crete referred to other initiatives the governor has supported, including increasing hourly attorney rates from $60 to $80 in 2021 and hiring more support staff to manage the commission.
“The governor appreciates the work the commission has done to improve billing oversight and accountability,” Crete said. “She will take into consideration the commission’s funding requests, and she will continue to work with the Legislature to improve the delivery of legal services to low-income people in Maine to ensure their constitutional right to counsel – a right that she values and has delivered herself, as someone who has repeatedly represented low-income clients throughout her own career.”
Joshua Tardy, who chairs the Maine Commission on Indigent Legal Services, told lawmakers on Wednesday that he’s talked with the governor’s office about his agency’s immediate needs.
“The governor is aware of our need for a supplemental appropriation and the urgency of it,” Tardy said. “… I would agree that a special session is something that the Legislature and the executive branch should seriously consider.”
Sen. Lisa Keim, R-Dixfield, co-chair of the Government Oversight Committee, questioned Tardy about the timing of the funding request.
“Because you see the situation between now and January to be dire if we do not act sooner, in some fashion?” Keim asked.
“I agree with that,” Tardy said.
Thousands of cases continue to languish in Maine courts as a result of a COVID-19 related backlog. There were 27,600 pending misdemeanor and felony cases across Maine as of Sept. 9, according to the Maine Judicial Information System. There were only 16,988 pending cases in September 2019, six months before the courts began delaying hearings because of the coronavirus pandemic.
“Even if we weren’t losing attorneys, we wouldn’t have had enough people,” Andrus said during Wednesday’s meeting.
This was the commission’s fourth report to the Government Oversight Committee, which first ordered an investigation of the agency in late 2019 after a study from the Sixth Amendment Center cited “serious concerns” with potential overbilling, low pay rates and inadequate performance by some attorneys.
Committee members agreed Wednesday that their oversight of the commission would end, acknowledging significant improvements over the last three years.
Andrus, who took over in 2021, said his office has had “substantial success” with management reform, but he feels that the commission’s ability to evolve is being held back by a lack of resources – especially attracting and retaining enough attorneys.
In August, the commission sent the Legislature a $62 million budget proposal, more than twice its current budget. The request includes the new $150 rate, as well as four new public defender offices. But even if the governor includes that amount in her budget and lawmakers pass it, the commission wouldn’t have the money until late in 2023.