AUGUSTA — The Legislature’s watchdog agency was directed Tuesday to investigate the state program that provides legal services to the poor, after concerns were raised in recent reports about rising costs and possible overbilling by private attorneys.

Sen. Lisa Keim, R-Dixfield, an oversight committee member, shown in May, said Tuesday about the Maine Commission on Indigent Legal Services, “Their role is to ensure there is justice for everyone. For us to create accountability there is critical.” Joe Phelan/Kennebec Journal

In a unanimous vote, the Government Oversight Committee approved an investigation into the practices of the Maine Commission on Indigent Legal Services, which is tasked with providing defense attorneys to those unable to afford an attorney.

The inquiry, which will be run by the Office of Program Evaluation and Government Accountability, will be a deeper investigation that extends a preliminary review of the legal services operation that the oversight committee ordered in April.

“Their role is to ensure there is justice for everyone. For us to create accountability there is critical,” said Sen. Lisa Keim, R-Dixfield, a member of the oversight committee. “There isn’t anything more critical than ensuring justice in our society.”

Keim, who also serves on the Legislature’s Judiciary Committee, headed a task force that also was charged with reviewing the work of the legal services commission. For at least two years she has been pushing her colleagues to increase oversight of Maine’s indigent legal services system.

In April, the nonpartisan Sixth Amendment Center released a report concluding that Maine’s system for providing attorneys to the poor was failing its clients. That report was commissioned by the Legislature’s Legislative Council, following a 2017 report made by a legislative working group that was formed to make recommendations to improve the provision of indigent legal services.

And in November, Pine Tree Watch, a nonprofit investigative news agency in Maine, issued a report showing the state paid more than $21 million to private defense attorneys in 2018 with little oversight of the spending. The report also detailed some $2.2 million in potential overbilling by private attorneys, including some who were billing for more than 80 hours a week for their work with indigent clients.

The commission’s spending has nearly doubled since 2009, when it began overseeing several hundred private defense attorneys who represent poor clients.

All states are required to provide an attorney to people who are unable to afford their own lawyer under a landmark 1963 U.S. Supreme Court decision.

Maine is the only state that hires and assigns private attorneys to indigent cases. All other states now meet the requirement through some version of a public defender’s office and a staff of attorneys.

The state also is facing increasing scrutiny from the American Civil Liberties Union, which has sued other states for doing an inadequate job in providing poor defendants with access to an attorney.

Tuesday’s vote supports the recommendation of OPEGA’s staff to do a full evaluation and report on the legal services commission, focusing on five key areas that were identified during the initial review, including financial oversight.

Danielle Fox, OPEGA’s director, told the oversight committee that the preliminary review in April was “quite extensive and very thorough.” A  report detailing that work, which included interviews with attorneys who worked in the program, was provided to the committee. Others interviewed included the state auditor, the chief justice of the state’s Supreme Judicial Court and the screeners used to determine if a person was financially eligible for services in the program. OPEGA’s staff also reviewed previous evaluations and the work of the Legislature’s working working group, as well as the report from the Sixth Amendment Center.

In 2018, the Legislature restructured the legal services commission’s governing body from a three-member panel to one that has nine members. That new commission held a public hearing in November as it begins to consider possible reforms on how it operates, its effectiveness in serving poor defendants, as well as changes to billing practices and financial oversight. The commission also is considering whether the system should be abandoned for a state-financed public defender system, used in most other states.

Fox said OPEGA recognizes the newly formed commission is considering a number of reforms and that proposals to reform the system also are moving forward in the Legislature. But she noted that OPEGA has the authority to see confidential records that would be off limits to other reviewing bodies.

“We will have access to more data than they would have and we can provide a more detailed and thorough analysis of some of those issues that were raised in some of those reports,” Fox said.

Keim said the new commission would likely benefit from the information OPEGA unearths, and that an investigation sanctioned by the Government Oversight Committee would help expedite real reform.

“We are doing the right thing here to move forward and look at this because if people don’t believe the system is just and fair then we’ve lost right there anyway,” Keim said.

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