A state watchdog agency has concluded that Maine’s system for providing legal services to the poor has little organizational structure, lacks oversight and does not have established policies for attorney billing.

The Maine Commission on Indigent Legal Services has been under scrutiny as lawyers and legislators alike call for reform, and this new report will likely bolster those efforts.

“I definitely think that this report has really put the commission and its staff on notice that the status quo is no longer acceptable,” said state Sen. Justin Chenette, one of the lawmakers who asked for this investigation.

The Office of Program Evaluation and Government Accountability published a detailed report Monday on the first phase of its review of the Maine Commission on Indigent Legal Services. The office found that the commission lacks established policies or procedures for payments to attorneys, and the current systems for monitoring or auditing those payments are inefficient and ineffective. It also said the commission is understaffed and does not have clearly defined roles for employees.

“Had the agency been appropriately staffed and the Commission been more functional, it is possible that some of these financial procedure issues may have been mitigated. … OPEGA did not fully establish the root cause for all identified issues,” the report says. “Nonetheless, there appears to be a link between the poorly functioning organizational oversight structure, inadequate staffing, and inadequate financial procedures.”

The office generally affirmed the findings of the nonpartisan Sixth Amendment Center, which last year identified financial and constitutional problems with Maine’s current system. The center found that “a significant number” of attorneys bill the commission for more than eight hours a day, five days a week and 52 weeks a year. OPEGA found that the billing errors in the Sixth Amendment Center report were “overstated” but agreed that a problem exists.

“The underlying issues – attorneys billing for large amounts of hours annually and MCILS’s ability to identify when that happens – remain valid,” the report says.

Josh Tardy, the commission chairman, wrote a letter to lawmakers that also agreed with the report’s key findings.

“The Commission has no disagreement with any of the actual facts stated in the report,” Tardy wrote in his reply. “There is gross underfunding for appropriate agency staffing. The significant inadequacies OPEGA has identified with respect to financial procedures and oversight structure cannot be solely attributed to inadequate funding.”

The eight current commissioners are ready to take more urgent action, Tardy said.

“Armed with this review, as well as the thoughtful analysis of the Sixth Amendment Center, the Commission feels well positioned to make the kinds of significant changes to accomplish its statutory mission,” he wrote.

John Pelletier, the commission’s executive director, did not respond to a voicemail or an email Monday afternoon. The Maine Monitor reported last week that Pelletier will be stepping down from his position next month.

The Maine Monitor, which has reported on billing issues and other concerns with the current system, recently reported that the commissioners will ask the Legislature and the governor to double their budget to $35.4 million. That money would add positions at the commission’s central office, pay for one public defenders office in Kennebec County and another statewide for appeals, and increase the hourly rate for indigent-defense lawyers from $60 to $100.

A person who is charged with a crime and facing potential time in jail has the constitutional right to a lawyer. If that person cannot afford a lawyer, the government is obligated to provide and pay for one. Maine is the only state that provides those legal services with private attorneys who are reimbursed by the state instead of public defenders.

But the Sixth Amendment Center found that the private attorney system in Maine begets gaps in legal representation and possible violations of constitutional rights. That review also identified concerns with attorney oversight, billing and staffing. The center issued a list of recommendations, including increasing funding for the Commission on Indigent Legal Services and establishing a public defenders office in Cumberland County.

The Legislature’s Government Oversight Committee authorized OPEGA in December to examine the commission, and the report published Monday covers two of the five key areas for that investigation. In particular, it focused on the commission’s system to process payments to private attorneys who represent indigent clients, as well as its oversight structure. The office was supposed to present this first report from its investigation to the legislative committee in April, but the pandemic delayed that delivery.

Chenette, who co-chairs the oversight committee, said he was particularly disturbed that the commission did not have key policies in place and in writing after 10 years of operation. He said he wants to see those problems addressed before adding staff and money to the commission.

“Without that structure, it doesn’t matter how many staff you add to an agency,” Chenette, D-Saco, said. “It will still be dysfunctional.”

State Rep. Anne-Marie Mastraccio, who also co-chairs the committee, said the next step will be to put clear recommendations in writing for legislators who will be sworn in for the next session.

“One of the things that we might want to do is to put into statute exactly how the commission should provide oversight for things like finances and for making sure that the lawyers who provide indigent legal services are well trained and able to do that service in the way that it was intended,” Mastraccio, D-Sanford, said. “There’s a number of things that we could do to put a few more teeth into the statute.”

The remaining areas of investigation include the standards that determine whether a person qualifies for a government-paid lawyer, the procedures in place for people who are determined to be only partially indigent, and the commission response to concerns about financial oversight. The office does not have a deadline to finish that phase of the investigation but is expected to do so early next year.

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