EDITORIALS

To ensure justice for all, lawyers’ fees must rise

Bangor attorney Richard Hartley, president of the Maine Association of Criminal Defense Lawyers, sits at his desk during an interview on Friday, Jan. 18, 2013 in Bangor.
Bangor attorney Richard Hartley, president of the Maine Association of Criminal Defense Lawyers, sits at his desk during an interview on Friday, Jan. 18, 2013 in Bangor.
Posted Jan. 27, 2013, at 10:08 a.m.
Last modified Jan. 27, 2013, at 10:04 p.m.

Urging higher pay for lawyers risks a level of scorn typically reserved for — well — lawyers. But consider how much the cost of living has changed since 1999.

For one particularly relevant point of reference, the average price of home heating oil in January 1999 was 76 cents per gallon. This week, it’s $3.72.

The hourly fee paid to Maine attorneys who represent people unable to afford a lawyer to defend them in criminal, juvenile, child protective and involuntary hospital commitment cases was $50 in 1999. It still is.

The costs associated with providing constitutionally guaranteed legal representation to low-income defendants in Maine certainly have risen in 14 years. The rates paid to lawyers should reflect that fact.

Jeffrey Silverstein, a Bangor criminal defense attorney, said it costs about $100 an hour to maintain his office. He and other attorneys who represent disadvantaged clients shouldn’t have to take a $50 loss for every hour they devote to defending people greatly in need of protection within the judicial system.

The Maine Commission on Indigent Legal Affairs, which in July 2010 assumed oversight of assigning private attorneys to low-income defendants, seeks to increase attorney fees to $70 per hour as of July 1, 2013, and to $75 per hour as of July 1, 2014. By comparison, attorneys who defend low-income clients in federal courts receive $125 per hour.

The commission also proposes raising the cap on payments to lawyers for specific services, such as a boost from $2,500 to $3,500 for trial fees related to Class A felony crimes.

The proposed rate hikes are overdue, reasonable investments in justice.

As part of its rule-making process, the commission held public hearings on the proposed rate changes. The commission informed Gov. Paul LePage’s administration of its intention to raise rates, according to Chairman David Mitchell. Despite listing “fully funding Indigent Legal Services” as a highlight in his proposed budget for the biennium that begins July 1, LePage did not include funding for the rate increase in that spending plan. Instead, he proposed a $5 hourly increase that would take effect July 1, 2014.

That’s an unfair approach to funding a program designed to ensure that all Mainers receive a fair trial. The people who would benefit from a fee increase that might prevent the commission’s roster from thinning further aren’t lawyers. They are juveniles accused of crimes, children whose legal rights must be protected in complex court proceedings and Mainers whose mental and financial conditions make them especially vulnerable to injustice.

Since taking over the program from the Maine Judicial Branch, the Commission on Indigent Legal Services has succeeded in bringing greater efficiency and predictability to the vitally important 14th Amendment function of ensuring that all people receive equal treatment under the law. But its roster of participating attorneys reflects the effect of underfunding the program. For Region VIII, which covers courts in Caribou, Fort Kent, Houlton, Madawaska and Presque Isle, the roster lists just one local defense attorney for homicide cases and limited options for sex offenses.

That puts justice at risk.

In its spending plan for the next two years, the LePage administration proposes increasing the budget for indigent legal services to correct chronic, past-funding shortages, which include what Miller described as a $1.86 million shortfall in the current fiscal year’s budget. But by largely ignoring the commission’s attorney fee increases, LePage doesn’t go far enough.

The Legislature’s budget-writing Appropriations Committee must take the next step by recognizing a higher principle of democracy — the right to a fair trial — when weighing the commission’s funding request. Difficult economic times do not relieve the state from the responsibility of funding constitutional protections.

CORRECTION:

An earlier version of this editorial contained an error. The chairman of the Maine Commission on Indigent Legal Affairs is David Mitchell, not David Miller.

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