AUGUSTA, Maine — Having enough money to pay attorneys who defend poor Mainers is proving to be as difficult a task for the Indigent Legal Defense Commission as it was for the judiciary.
Attorneys assigned to represent criminal defendants facing jail time and others entitled to court-appointed counsel will not be paid during the month of June because the commission will run out of money at the end of May, John Pelletier, executive director of the commission, said last week.
Lawyers will be paid after July 1 for work done previously when the new fiscal year begins, he said. The same thing happened last year and in 2008, when the judiciary still was responsible for paying court-appointed attorneys.
“It’s hard for talented attorneys to stay involved in this kind of criminal work when they are not getting paid,” Aaron Frey, a Bangor attorney in private practice, said recently. “It’s awfully hard to pay the bills and provide the work under that circumstance. Realistically though, I don’t think people are going to say, ‘I’m not talking to my client because I won’t be paid.’”
Reimbursement at the end of the year does seem to be “an age-old problem,” said Frey, who has been a lawyer since 2008.
A solution does not appear to be on the horizon. Pelletier predicted that unless adjustments are made, the budget for fiscal year 2013 that begins July 1 will be $1.5 million short of what is needed to fund indigent legal defense in Maine. Attorneys are assigned to about 30,000 indigent cases a year.
Late last year, Pelletier requested an additional $1 million in the governor’s supplemental budget for the fiscal year ending June 30. Gov. Paul LePage reduced that amount to $400,000 in his recommended budget but the Legislature’s Appropriations Committee upped the budget line to $750,000. Lawmakers approved that amount before adjourning. While the reasons for creating the commission included providing independent oversight of the delivery of indigent legal services and improving the quality of representation, a driving force was money. The report that recommended creating the commission concluded it was impossible for the court system to predict how much money would be needed each year to pay attorneys, creating a drain on the judiciary.
The commission’s budget for the fiscal year that began July 1, 2011, and ends June 30, 2012, was $9.7 million, according to previously published reports. The budget for fiscal year 2007 was $12.2 million. Budgets then were flat funded for the next two years.
When the Legislature created the commission in 2009, the budget for indigent legal defense under the judiciary for the fiscal year that ended June 30, 2010, was $10.4 million. When it came time to transfer the funds to the commission’s control, the budget had been cut to $9.95 million, according to Pelletier.
Because of that, the commission started about $600,000 short of what it needed to pay attorneys and has not caught up yet, he said.
“There was always a concern that we didn’t have enough money” from the start, Ron Schneider, chairman of the commission, told a Portland newspaper in February 2011.
Pelletier said last week that costs are up slightly this year over last year with vouchers submitted by attorneys for payment averaging $10 more. The number of vouchers increased by 1,600 over last year, he said. The average voucher is $400.
Over the past five years, efforts to more closely scrutinize an individual’s financial circumstances before deciding if he or she qualifies for a court-appointed lawyer have increased. The commission employs six financial screeners who serve courts in York, Cumberland, Franklin, Androscoggin, Sagadahoc, Lincoln, Knox, Waldo, Kennebec and Penobscot counties.
Because screeners are able to spend more time determining a person’s assets than most judges are able to, screeners are more likely to find someone is able to repay some of the costs paid by the state to a court-appointed attorney. Screeners also are responsible for collecting the money owed by defendants, according to Pelletier.
Screeners are budgeted to collect about $600,000 in the next fiscal year, he said.
Attorneys contacted over the reimbursement issue expressed greater concern over the rate of $50 an hour than the payment delay. The rate has been the same since 1999. The federal court system currently pays court-appointed attorneys $125 an hour, up from an average of $60 in 2000, Bangor attorney David Bate, who is in private practice, said recently.
Hourly rates lawyers in Maine charge clients who do not qualify for court-appointed counsel range from $150 to $300 an hour, according to previously published reports.
“I don’t think it’s fair to compare the federal and state systems,” he said. “But on the state side, $50 an hour has not kept pace with the cost of living. The cost of practicing law has gone up since 1999. Everyone else in the system has had an increase.”
Bate said that the reimbursement rate for others paid in criminal cases, such as psychologists, who are paid $150 an hour, has gone up.
In addition to the hourly rate, caps are placed on all cases except murder cases. Fee caps range from $450 for misdemeanor crimes to $2,500 for Class A crimes, such as robbery and rape.
Neither Frey nor Bate thought that the majority of criminal defense attorneys in Maine would stop taking court-appointed cases, but both said they know many who have cut back on the number of cases they’ll take due to the low hourly rate.
“I’m really proud to be part of a tradition of lawyers that step up to represent indigent defendants,” Bate said. “There’s a long line of very fine attorneys who came before me in the local bar who made it their habit to represent these people. They would be without help if no one stepped up. The hourly rate is a slap in the face but I feel strongly about the practice.”
Since the U.S. Supreme Court’s 1963 decision in Gideon v. Wainwright, indigent defendants facing jail or prison time have been entitled to legal representation. That means lawyers must be paid for by the government, either state or federal, that brings the charges. Currently, indigent adults and juveniles facing incarceration are entitled to be represented. The state also pays for attorneys to represent parents in child protective cases and people facing involuntary commitment to a psychiatric hospital who are indigent.
The state does not provide representation to people in civil cases, such as divorce, eviction, foreclosure or small claims, according to information on the commission’s website.