When Maine raised the reimbursement rate for defense attorneys taking court-appointed cases to $150 an hour, the state had a record low number of lawyers available to represent poor Mainers.

A year later, the Maine Commission on Indigent Legal Services says it has fewer attorneys at its disposal than ever – even though lawmakers say they increased the rate to revive the state’s rosters.

“It definitely sounds like that hasn’t happened,” Rep. Matt Moonen, D-Portland, co-chair of the Legislature’s Judiciary Committee, said during a meeting Wednesday.

The commission oversees a list of private attorneys who sign up to provide legal representation to people who cannot afford an attorney for criminal, juvenile and child protective cases, and for people facing involuntary commitment to a psychiatric hospital.

Jim Billings, the commission’s executive director, told the committee that Maine’s indigent defense system is struggling with an ever-growing backlog of criminal cases and protective custody petitions.

“There are attorneys that are just saturated with cases,” Billings said. There were only about 140 attorneys accepting new court-appointed cases as of Wednesday, Billings said, compared to more than 400 in March 2020.

But the number of new cases coming in has not slowed down. The commission was responsible for taking on more than 32,000 new cases in 2023, it said.

Defense lawyers are burned out, Billings said. More than 75% of the attorneys the commission surveyed last fall said they felt overwhelmed by their work, and nearly half said the workload was getting worse as more courts started requiring in-person attendance after years of holding court hearings via Zoom.

“This suggests to me that attorneys are busy and aren’t willing to put themselves on the roster because they’re worried about getting a bunch of new cases,” Billings said.

Wednesday’s presentation marked a notable shift in the commission’s pleas to state lawmakers for help handling the state’s indigent defense crisis.

As of Friday, the courts told the commission that there were at least 85 Mainers in jail without a lawyer. The commission said the shortage of lawyers is “unacceptable” but that “the issue of the availability of counsel” who have limited capacity is poor framing.

While previous legislative sessions have focused on attorney pay increases and creating public defenders, Billings stressed to lawmakers Wednesday that there’s only so much the commission can do on its own to tackle a problem not of its own making.

“The solution to the issue of counsel availability does involve continued work recruiting and retaining both assigned and employed counsel but must absolutely include work on the part of outside stakeholders to reduce unnecessary charges; resolve matters through early diversion, treatment and education; and to dismiss those cases that may be reasonably dismissed,” the commission states in its 2023 annual report. 

The commission sends a report to the Legislature every year on its progress and needs. But many of the specific requests it made to lawmakers this year are key provisions in a four-year settlement agreement that it has tentatively reached with the American Civil Liberties Union of Maine, which sued the state in 2020 for allegedly failing to provide adequate legal representation to poor Mainers. As of Wednesday, a judge was still considering whether to approve the agreement and avoid a trial.

PLAN FOR PUBLIC DEFENDER OFFICES

The commission is asking lawmakers this year to commit to a long-term plan to open public defender offices around the state.

The commission already hired the state’s first public defenders in late 2022 to staff its Rural Defenders Unit. It also began hiring attorneys for its first bricks-and-mortar public defense office in Kennebec County, the annual report said.

But it’s now asking for $8.9 million over the next couple years to open an office with a goal of taking on about 30% of all criminal cases in the state. Billings said the commission is rethinking plans for a combined Cumberland and York county office. Having two could cost more, but would be better for covering the state’s most populous counties.

Some lawmakers pushed back on the cost. The public defense office plan doesn’t require all the funds upfront, and Billings pointed to the state’s projected $265 million surplus for this fiscal cycle.

But Billings said another pressing problem is creating a plan to hire public defenders who can represent parents in protective custody cases. Private attorneys are carrying huge caseloads beyond their capacity, he said.

He acknowledged that many of the proceedings are confidential and are rife with conflicts of interest that prevent some attorneys from helping. In many cases, the courts need more than one attorney because there’s more than one parent involved.

“The numbers that we’re seeing in those cases make me think we should shift to employing some of those parents’ attorneys sooner rather than later,” Billings said.

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