AUGUSTA — A class-action lawsuit against the state’s system for providing legal representation to poor Mainers will remain in limbo for at least two more weeks.

Attorneys for the ACLU of Maine and the Maine Commission on Indigent Legal Services decided at a short hearing Friday that they will meet again in Kennebec County Superior Court on Sept. 29 to decide whether they want to keep negotiating a deal or set a trial date.

The parties spent more than an hour in Superior Justice Michaela Murphy’s chambers Friday morning discussing her rejection this week of a proposed settlement.

The agreement would have paused the ACLU’s lawsuit for four years, during which the commission would have been tasked with creating and implementing new performance standards for the private attorneys it oversees, and advocating for additional resources from state officials.

In rejecting the settlement, Murphy said that the proposed deal did nothing to offer emergency relief during those four years to the likely thousands of low-income criminal defendants, some of whom would be without meaningful legal representation in that period.

The ACLU sued the commission in March 2022, alleging that Maine is failing to provide adequate legal counsel to those who are constitutionally entitled to it. When Murphy granted the ACLU’s lawsuit class-action status in July 2022, the organization said the class could potentially consist of anywhere from 5,800 to 7,300 people. A spokesperson said Thursday that number changes daily based on the number of criminal defendants who need counsel in Maine.

After the parties reentered the courtroom in Augusta Friday, Murphy said they had a “wide-ranging discussion” about how to move forward but attorneys needed more time to review her latest order.

The commission’s board is scheduled to meet Monday, though the agenda says its only item “is in an executive session.”

Zachary Heiden, the ACLU’s chief counsel, said Friday that the organization will continue working on an agreement with the state that reflects Murphy’s concerns, but added that the ACLU is prepared if the suit goes to trial.

“We do still believe, however, that a negotiated resolution of this case will provide meaningful and effective relief to the people of Maine,” Heiden said. “We’re going to try the best we can to try to refashion the proposed settlement agreement, working with counsel for the defense, into something that the court can approve.”

Officials with the Maine Commission on Indigent Legal Services declined to comment on the case. Assistant Attorney General Sean Magenis, who is representing the commission, also declined to answer questions about next steps.

Murphy said she won’t approve any agreement that doesn’t offer a “clear path for class members” to obtain emergency relief from the court.

“I completely appreciate these are complicated issues. I completely appreciate the separation of powers, this court has limited authority to provide certain remedies,” Murphy said Friday. The court is not able to compel the state to spend money on indigent defense. “I think I’ve been candid with the parties from the beginning of this case about that issue.”

In either event, the judge said she doesn’t want it to drag on. If the parties decide they want to continue the lawsuit, she wants to set a target trial date, and she doesn’t want that to be a year from now. She also reminded the parties that the next legislative session begins in January.

KEEPING PROPOSED STANDARDS, COLLABORATION

At a hearing last month, Murphy said that she appreciated the settlement’s incremental solutions, but was “very concerned about approving a settlement that’s going to bar people from coming in and obtaining emergency meaningful relief if conditions don’t improve,” according to a court transcript.

She echoed that sentiment when she rejected the proposal this week, saying it unfairly restricts class members from challenging their criminal cases, or pursuing civil action, if they’re impacted by inadequate or nonexistent access to legal counsel.

The agreement allowed class members to challenge the commission for any individual harm, but barred them from challenging the commission for “systemic failures or deficiencies in Maine’s indigent defense system.” Murphy said in her order that it would be impossible for many people struggling with attorney access to “disentangle” that from systemic issues.

After Friday’s hearing, Heiden didn’t directly answer a question about how the agreement could be amended to provide emergency relief. He said the parties spent a lot of time on the agreement and that every provision is important. That includes a timeline for when the commission must consider, adapt and enforce standards for private attorneys handling a majority of the state’s court-appointed work.

The agreement would have relied on the ACLU to provide the commission with its own recommendations for minimum attorney qualifications, a process for addressing conflicts of interest, complaints and performance standards. It also would have tasked the ACLU with providing recommendations for the commission’s  “lawyer of the day” program, in which attorneys represent indigent defendants during their initial appearance, before the court can assign a more permanent defense attorney.

At last month’s hearing, Magenis defended the agreement against Murphy’s concerns that the proposal did nothing to address a severe shortage of private attorneys willing to accept cases from the commission. Murphy said some provisions in the agreement could actually have made things worse; she wondered if proposed rules for attorney performance and caseload standards might scare off counsel.

Magenis said there’s no evidence of this, but it’s possible “the initial effect may be that additional lawyers remove themselves from the roster.”

“Nobody knows what’s going to happen,” he said, according to court transcripts.

“But why would I approve something that you acknowledge might make things worse?” Murphy had said. “And we’ve seen unintended consequences, good faith efforts that have failed. Good faith efforts by the other branches, by MCILS that have made things worse or not addressed the heart of the problem, which is that we just don’t have people right now representing people who are entitled to counsel.”

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