The state agency responsible for providing low-income Mainers with legal representation unveiled an $8.9 million budgeting proposal at its meeting Wednesday that would create and fund six more public defender offices by 2025.

The offices would cover 30% of each region’s adult criminal caseload, still leaving a majority of the work to private, court-appointed attorneys. Maine was the only state in the nation that relied exclusively on private lawyers, overseen by the Maine Commission on Indigent Legal Services, until the Legislature agreed to create the state’s first public defender positions in 2022.

But as the commission’s roster of private attorneys continues to dwindle – only about 60 attorneys are accepting new, trial-level work for criminal defendants – agency director Jim Billings said Wednesday that he thinks a more robust public defense system can help fill in the gaps.

The commission’s budget proposal doesn’t ask for the money all at once. The commission is seeking $3.2 million for 2024, including roughly $2.8 million to create two public defense offices in Aroostook County and the Bangor area. That 2024 request also seeks about $284,000 for a paralegal and an investigator to work with the state’s existing public defense offices, and about $434,000 for additional employees and resources to the commission’s central office.

The proposal then takes the extra step of asking lawmakers to create four more offices to cover the rest of the state, although those offices would not be funded until 2025. That would cost another roughly $5.7 million. The agency wants a Down East office, a Midcoast office, a southern Maine office for Cumberland and York counties, and another central Maine office to serve Androscoggin, Franklin and Oxford counties.

Billings said he wants lawmakers to approve these locations, as well as employee head counts, so the commission can secure office space. With approval beforehand, the jobs would be easier to staff once funded.

But it’s unclear whether lawmakers will commit to creating these offices before funding them.

Billings told commission members Wednesday that staff had talked with lawmakers on the Judiciary Committee about the proposal. Sen. Peggy Rotundo, D-Lewiston, and Rep. Melanie Sachs, D-Freeport, who chair the budget-writing committee, did not respond to emails Wednesday seeking to discuss the commission’s budget proposal.

Judiciary spokesperson Barbara Cardone, who spoke at Wednesday’s meeting from the perspective of a former lawmaker on the budget-writing committee, said she wasn’t sure lawmakers will commit.

“Even if it is possible, if you don’t have funding set aside and you’ve got a position hanging out there with no funding … it’s ripe for being cut,” she said.

DRIVING PEOPLE AWAY

As of Friday, the Maine Commission on Indigent Legal Services reported that it only had 187 rostered attorneys, with 132 of them available for trial court-level work.

Billings said about 40 of those attorneys were only accepting new lawyer of the day cases, where they represent new criminal defendants only at their initial appearances. About 55 attorneys were taking assignments for protective custody cases, where parents risk losing their children, and roughly 60 were accepting new adult criminal cases.

“You’re lovely for doing this work,” Billings said to the couple dozen private attorneys following along over Zoom. “But there aren’t enough of us. There aren’t enough people available to do this work.”

The ACLU of Maine sued the commission in March 2022 on behalf of five incarcerated clients who claimed they were not getting enough time or attention from their attorneys. That July, a judge granted the case class-action status, meaning it would affect thousands of clients in similar situations, rather than just the five named in the lawsuit.

The sides have been negotiating a possible settlement of the lawsuit and it was unclear Wednesday where those discussions stood and whether the commission’s proposal would provide a pathway to a settlement.

Billings said that by creating new jobs that inspire law students to stay here, and new attorneys to come here for indigent work, the public defender offices would serve as a “long-term fix” to Maine’s dwindling roster of private attorneys willing to accept work.

The commission recently published the results of a survey that the agency conducted in September, asking private attorneys about their experiences with burnout. Three in four said they felt overwhelmed by their work and had experienced burnout within the last year. They told the commission that they struggle accessing health insurance – which the state can’t offer to contracted workers. They also struggle with administrative costs that come with court-appointed work, second-hand trauma and demanding schedules.

“The survey results are unsurprising, but highly concerning,” commission staff wrote in a memo summarizing the survey. “The results reflect what we already knew: that indigent representation is stressful, that stress causes burnout, and burnout causes attorneys to perform poorly and stop doing this work.”

And now, some commission attorneys say, judges are appointing them to represent indigent clients, even when the attorneys say they don’t have the time or capacity to take on new work.

Commissioner Donald Alexander, a former Maine Supreme Judicial Court justice, sent a memo to other commissioners before Wednesday’s meeting, asking the commission to suspend rostering conditions for judicial appointments, giving judges the discretion to appoint attorneys even if they haven’t indicated they are available to do the work. Alexander also asked the commission to reconsider caseload standards that restrict the number of cases attorneys can take, saying the standards are based on national advocates’ recommendations and don’t reflect what he’s seen in Maine.

Commissioners did not vote on any of these requests Wednesday. But in public comments toward the end of their Wednesday meeting, some spoke out against the memo.

“I am deeply troubled by what I read,” said attorney Justin Andrus, who was the commission’s executive director before Billings. Andrus said he has heard from other attorneys accepting indigent work, who also were dismayed by Alexander’s comments.

Andrus said allowing courts to assign attorneys who are not available would “drive away people who want to do that work.”

After the meeting, Alexander said he believes judges “are only going to appoint people who they know are competent, as they did for a number of years” before the Maine Commission on Indigent Legal Services was created.

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