Pleading the Sixth: Maine is the only state in the country that provides all indigent defense services through private attorneys. There are two principal reasons that other states have moved away from using solely private attorneys. First, it is difficult to predict and contain costs in a private attorney system. Second, it is difficult to supervise private attorneys to ensure they can and do provide effective representation. Maine struggles with both, as the Maine Commission on Indigent Legal Services is expected to oversee the representation by and cost of nearly 600 attorneys, handling more than 30,000 cases each year in 47 courthouses presided over by approximately 90 justices, judges, and magistrates, with a staff of just three people. Read the latest 6AC evaluation.
The Maine legislature created the Maine Commission on Indigent Legal Services (MCILS) in 2009. MCILS is statutorily required to: “provide efficient, high-quality representation to indigent criminal defendants, juvenile defendants and children and parents in child protective cases, consistent with federal and state constitutional and statutory obligations”; “ensure the delivery of indigent legal services by qualified and competent counsel in a manner that is fair and consistent throughout the State”; and “ensure adequate funding of a statewide system of indigent legal services, which must be provided and managed in a fiscally responsible manner, free from undue political interference and conflicts of interest.”
A new Sixth Amendment Center report, The Right to Counsel in Maine, released April 4, 2019, shows that these legislative mandates are not being met throughout the state. Although MCILS implements a “lawyer of the day” system that ensures a lawyer is physically present when defendants appear in court for the first time, that lawyer is rarely appointed to represent those defendants, leaving indigent defendants unrepresented for days or sometimes weeks. Since its inception, MCILS has never used governmentally employed attorneys to provide representation. Instead, MCILS pays private attorneys either through an annual fixed fee contract in Somerset County or in the rest of the state at $60 per hour with limits on the maximum that can be billed for each case. Both of these payment methods place the case related interests of indigent defendants in conflict with the financial interests of the attorneys appointed to represent them. MCILS cannot guarantee effective representation in each and every case, especially when Maine only dedicates enough funds for three MCILS staff members to provide all financial and substantive oversight.
Inadequate qualifications, training, and supervision
MCILS has few and insufficient requirements that attorneys must meet in order to be eligible to represent indigent defendants. Under MCILS’ qualification requirements, an attorney who graduated from law school two years ago and hung out their shingle in a private practice, with no supervision or training, can have two jury trials and two judge trials and then be appointed to represent indigent defendants in every type of criminal case other than a homicide or sex offense. More worrisome perhaps is that indigent defendants charged with Class E crimes, carrying up to six months in jail, can be represented by an attorney who just received their bar card and completed a single training course in criminal law, as long as the lawyer has an email address, telephone number, and a confidential space to meet with clients.
MCILS does not require attorneys appointed to represent the indigent to obtain training in the fields in which they provide indigent legal representation (beyond that required to first be placed on the roster for appointments in operating under the influence or domestic violence cases). Similarly, MCILS has not established any requirements for supervision of attorneys appointed to provide indigent legal representation. After the start of the 6AC assessment, MCILS identified 25 attorneys statewide to serve as resource counsel and provide mentoring to less experienced attorneys. These attorneys are each capped at providing only 10 hours of mentoring per month, meaning 25 attorneys are available to provide less than 30 minutes of mentoring each month to each of the other 575 system attorneys, and the resource counsel attorneys do not have authority to require any mentee to cooperate.
MCILS’ lack of oversight of appointed attorneys means it cannot ensure effective representation in each and every right to counsel case. Despite there being many excellent lawyers providing representation to the indigent accused throughout Maine, there are also too many attorneys who do not perform adequately. For example, the Sheriff in one county estimates that about 25% of appointed attorneys do not visit their clients in jail at all and do not accept phone calls from their clients in the jail. In another county, three years of jail visit data reviewed by 6AC showed that a concerning number of attorneys rarely or never visit clients in jail; one attorney who billed MCILS $171,880 in FY 2017 did not bill even a single hour for a jail visit. A judge in a third county estimates that 25% of appointed counsel have not met with their clients before the first dispositional conference date and that up to 10% of attorneys withdraw or become a second chair if the case goes to trial. This information is anecdotal and it is certainly possible that there are reasonable explanations, but the point is that MCILS and the State of Maine do not know because of a lack of oversight.
Actual and constructive denial of the right to counsel
There are numerous hurdles an indigent defendant must leap before receiving their right to appointed counsel in Maine.
In every courtroom that 6AC observed throughout the state, defendants are advised of their rights, including their right to appointed counsel if indigent, by a video that is played before the judge takes the bench in the courtroom. No one ensures that defendants have watched the video, understand the language spoken in the video, or have the mental capacity to understand the video, and it is often the case that tardy defendants enter without ever seeing the video at all.
The U.S. Supreme Court in Alabama v. Shelton made clear that the right to counsel attaches to any case involving the potential for jail time, no matter how remote the possibility. Contrarily, Maine statutory law does not require courts to appoint counsel for indigent defendants who are charged with Class D or E crimes (punishable by up to 1 year or 6 months in jail, respectively) if the prosecution says it will not seek jail time. Faced with these competing instructions, many judges tell indigent defendants they cannot have an appointed attorney in these circumstances, even though the defendants end up on probation with a suspended sentence.
Plea negotiation is a critical stage of the case under U.S. Supreme Court case law, meaning the negotiation cannot happen unless counsel is present or the defendant has knowingly, voluntarily, and intelligently waived their right to counsel. Despite this, prosecutors (most prevalently in the southern part of the state) often talk to uncounseled defendants to negotiate guilty pleas before the defendants are given an opportunity to request or waive their right to counsel.
MCILS is simultaneously tasked by the legislature with providing counsel to represent the indigent and with collecting from those indigent defendants for the cost of their appointed counsel. MCILS has eight employees – known as financial screeners – who gather financial information from defendants and make recommendations to the courts about whether the defendant should receive appointed counsel and whether the defendant should be required to pay in whole or in part for that counsel. The MCILS financial screeners are responsible for collecting payments from indigent defendants for whom the courts appoint counsel and make a reimbursement order. These MCILS collection efforts, against the very defendants for whom MCILS is required to provide representation, include sending dunning letters, provoking show cause hearings, and reporting defendants to have their state tax refunds garnished. Indigent defense systems must require their participating attorneys to adhere to their ethical duty to zealously defend in the stated interests of the client, including advocating against the imposition of fines, fees, and other assessments. MCILS cannot assure that appointed attorneys fight against the imposition on indigent defendants of fees related to the cost of the defense, while MCILS is itself trying to collect fees assessed for the cost of representation.
“Lawyer of the day”
MCILS provides for a “lawyer of the day” to appear at 48-hour hearings for in custody defendants and at initial appearances for out of custody defendants. The number of lawyers serving as lawyer for the day is generally insufficient to even meet with, much less actually provide representation to, the number of defendants scheduled on each day’s docket. For example, on an average day in Cumberland County’s Portland District Court, there are two lawyers for the day to handle 80 defendants. If the Portland District Court ran for a full uninterrupted eight hours during these dockets (and it does not), that would allow a lawyer to spend an average of 12 minutes with each defendant.
Moreover, the lawyer for the day system provides limited representation because it is only “for the day,” not for the case. In most instances the “lawyer of the day” does not continue with the case. Instead, courts make a formal appointment of counsel in each defendant’s case off of a roster of MCILS approved lawyers. Some judges like to select the individual attorney to appoint in a given case, some leave it to their clerks to do after the hearing, and some use a rotational system where the next attorney on the list is appointed. However, a gap in representation occurs when those appointments are delayed.
Furthermore, the lawyer of the day program in Somerset County produces a direct conflict of interest. The contract attorneys can be hired by non-indigent defendants who appear in court while the contract attorneys are serving as lawyer of the day. That is, the attorney can meet with a defendant and encourage the defendant to hire them privately. This central role of the contract attorneys as lawyer of the day, meeting every person who is hailed into court, creates a monopoly of sorts; attorneys outside of Somerset County said they are effectively prevented from establishing a practice in Somerset County. That is, the contract attorneys keep not only all the appointed cases but also most of the private work, since the contract has provided them a personal introduction to all defendants.
Attorneys’ financial interests conflict with defendants’ case interests, and inadequate fiscal oversight by MCILS
Governments impinge on the right to counsel when they create systems that place the lawyer in a conflict of interest with the defendant. When the needs of a client’s case require the lawyer to spend money out of his own compensation, or when the attorney earns a lesser and lesser fee with each hour he devotes to a client’s representation, there is a conflict between the lawyer’s personal interests and that of the client. Both of the methods that Maine uses to compensate counsel for the indigent create these conflicts of interest and impede the effective representation of counsel.
In only Somerset County, MCILS has a single contract with three private attorneys to collectively provide all trial level indigent defense services absent a conflict of interest, to carry out any appeals from those cases, and to handle post-conviction review proceedings where they did not represent the petitioner at trial. In exchange for that representation, MCILS pays the three attorneys collectively a fixed annual compensation that is divided among the three attorneys. The attorneys are responsible for paying all of their own overhead costs.
Fixed fee contracts, in which a lawyer earns the same pay no matter how many cases he is required to handle and no matter how many hours the representation of those cases need, create financial incentives for a lawyer to dispose of cases as quickly as possible, rather than as effectively as possible for the client. Even where the defendant has a winnable case, the lawyer’s incentive nevertheless is to resolve it by plea. The attorney is not rewarded with additional pay for the additional work involved in zealous advocacy. Instead, the attorney is hurt financially the more he does for his clients.
Over the past six years, the average number of hours spent per indigent defense case in Somerset County has steadily declined. On average, the lawyers spent 6.78 hours per adult case in FY 2013, dropping to 3.27 hours per case by FY 2017, and dropping further to 2.99 hours per case in FY 2018. MCILS does not require the attorneys to break down their case reporting by severity of the case, so 2.99 hours is the average time spent by appointed attorneys in 2018 to defend all types of cases, ranging from the simplest charge carrying a punishment of 6 months in jail to the most serious homicide charge carrying life in prison.
Meanwhile, the State of Maine is paying the appointed attorneys in Somerset County three times as much as it pays all other appointed attorneys in the state and getting approximately one third of the work. In Somerset County in FY 2017, the average fee per case was $573.16 for an average 3.27 hours per case – the equivalent of $175.27 per hour. Elsewhere in Maine, the average fee per case was $554.80 for an average 9.25 hours per case – paid at $60 per hour.
Other than the three attorneys under contract in Somerset County, MCILS pays all other appointed attorneys a set rate of $60 per hour for all types of work in all types of cases. The maximum compensation an attorney can be paid for each case is capped, based on the type of case, although the maximum can be and frequently is waived by the MCILS executive director. The attorneys are responsible for paying all of their own overhead costs (e.g., rent, office utilities, professional insurance, legal research tools & resources, secretarial assistance, etc.). An attorney who serves as “lawyer of the day” is allowed to bill a minimum fee of $150 even if their time spent is less than 2 ½ hours.
Where lawyers are paid by the hour, they can only earn more money by either billing more hours on appointed cases or taking on privately retained cases. To the extent that MCILS actually imposes the maximum compensation limits for each appointed case, it is in the attorney’s financial interest to take on as many cases as possible, without regard to whether the attorney has adequate time to devote to each client’s case.
“Over-billing” was a topic raised frequently throughout the state. In Maine, attorneys do not submit vouchers under penalty of perjury. No statutes or MCILS rules limit the number of hours an attorney can bill by day or by year. MCILS conducts no audits. Not surprisingly, a review of the vouchers that appointed attorneys submitted to MCILS over the past five years generated serious concerns in some instances about whether limited taxpayer resources are being used effectively.
If an attorney works eight hours per day, five days per week, for 52 weeks a year, the maximum the attorney can earn at the MCILS rate of $60 per hour is $124,800. Yet 25 attorneys billed MCILS in excess of that amount for appointed cases in FY 2018. The top biller in FY 2018 billed more than 88 hours for every week of the year for appointed MCILS cases. And these attorneys are allowed to engage in other professional pursuits, handle privately retained and pro bono cases, and take appointments outside of the MCILS system. For example, the Federal Defender Services Division of the Administrative Office of the United States Courts confirmed to 6AC that eight of the 25 highest billing lawyers in FY 2018 also received federal court appointments during the same time period.
To begin, the 6AC recommends that the State of Maine should authorize and fund MCILS at an appropriate level to employ state government attorneys and support staff in a statewide appellate defender office and a Cumberland County trial level public defender office. MCILS does not currently have the statutory authority to establish governmentally employed public defender offices. The relevant part of the statute says: “The commission shall [d]evelop and maintain a system that uses appointed private attorneys, contracts with individual attorneys or groups of attorneys and consider other programs necessary to provide quality and efficient indigent legal services.” The statute needs to be amended to give MCILS express authority to create staffed public defender offices.
Many states have found it appropriate to separate the public defense appeals system from the public defense trial system to ensure that the direct appeal is a check against potentially ineffective trial representation. As far back as 1971, Maine’s Institute of Judicial Administration, Supreme Judicial Court, and Superior Court all recommended a “hybrid public defender/assigned counsel delivery model” with public defender offices located in Cumberland County, Kennebec County, and Penobscot County. MCILS and Maine policymakers should consider expanding public defender office to Kennebec and Penobscot counties once a public defender office is established in Cumberland County.
For those jurisdictions that continue to be served by private attorneys, the State of Maine should statutorily ban all public defense contracts that provide financial disincentives to or that otherwise interfere with zealously advocating on behalf of the defendants’ stated interests, including the use of fixed fee contracts. This can be ensured by requiring that any future public defense contract include reasonable caseload limits, reporting requirements on any private legal work permitted, and substantial performance oversight, among other protections. The 6AC recommends that the State of Maine fund MCILS at a level that allows private attorneys to be compensated for overhead expenses plus a reasonable fee (i.e., $100 per hour). MCILS should be authorized to provide additional compensation of $25 per hour for the most complex case types such as murder, sexual assaults, and postconviction review, to ensure an adequate number of qualified attorneys are willing to accept appointed cases.
Finally, to address the broader criminal justice deficiencies, the 6AC recommends that the State of Maine statutorily bar communication between prosecutors and unrepresented defendants, unless and until defendants have been informed of their right to appointed counsel, a judge has conducted the legally required colloquy, and a defendant has executed a written waiver of the right to counsel in each case, to ensure that all waivers of the right to counsel are made knowingly and voluntarily. The State of Maine should remove from the Maine Commission for Indigent Legal Services the responsibility to conduct financial eligibility screenings, and the newly reconstituted Supreme Court Task Force on Pretrial Justice Reform should determine the appropriate agency to conduct indigency screenings.
There is reason for optimism that these changes will occur. Even as the 6AC evaluation was underway, the Maine legislature began taking action to improve right to counsel services.
For example, MCILS is now expanded from a five-person commission appointed by the Governor to a nine-person commission. There are seven voting members – one with administration & finance experience; one with child protection proceeding experience; and five chosen from lists recommended variously by the President of the Senate, the Speaker of the House of Representatives, and the Chief Justice of the Supreme Judicial Court. The two non-voting members are attorneys who provide indigent legal services as a majority of their law practices and are chosen, one each, from lists recommended by the president of the Maine State Bar Association and by the president of another statewide organization representing criminal defense attorneys.
Sitting judges, prosecutors, and law enforcement officials, and employees of people in those positions, cannot serve on the commission. Any person who is paid by the commission (whether as an employee or otherwise) cannot be a voting member, nor can their immediate household family members. Two of the nine members must be non-attorneys or non-practicing attorneys. Finally, all members of the commission “must have demonstrated a commitment to quality representation for persons who are indigent and have the knowledge required to ensure that quality of representation is provided in each area of law.” In short, once the new board members are appointed, Maine will have a more professional MCILS to consider implementing the recommendations of this study.