AUGUSTA, Maine — The number of lawyers taking cases under Maine’s system for providing legal defense to low-income people accused of crimes has plunged in recent months, leading some to worry that cases may not be covered if the trend continues.
Maine is the only state without a public defender system. Instead the state contracts with private lawyers to provide legal representation for people who cannot afford it. The Maine Commission on Indigent Legal Services has been under heavy scrutiny since 2019, when a state report that highlighted a lack of financial oversight was followed by more critical reporting on the system led by the Maine Monitor, a nonprofit news outlet.
It led the Legislature to pass partial reforms this year, including a raise for lawyers. But that is not seen as a panacea. The COVID-19 pandemic already caused court delays and further ones may leave the state more open to long-threatened lawsuits claiming inadequate counsel. One dispute between a lawyer and the commission led her to leave nearly 200 cases.
The system is not at a crisis point and lawyers have been provided to all clients this year, said Justin Andrus, the commission’s interim executive director. But he said the declining rosters were “a trend worth getting ahead of” and issued a warning.
“So far, we have successfully staffed every case that has been presented to us,” he said. “If lawyers continue to withdraw, it is possible we will reach a day when we’re not able to do that.”
As of June’s end, there were 306 lawyers actively accepting cases, Andrus said. That is down 28 percent from a high point within the past year, he said, when more than 420 lawyers were available. Caseloads have also increased markedly over the past year, with a record 28,687 cases in the 2021 fiscal year. In June alone, the commission saw more than 2,500 cases, suggesting the pace is still accelerating as courts emerge from pandemic backlogs.
The two-year state budget passed earlier this month contained $18.6 million in new funding for the commission, including a rate increase from $60 per hour to $80 per hour, staffing and enhanced financial oversight. Andrus said the increase would be “instrumental” to help lawyers continue to work in the system.
But both he and defense attorneys said the problems are more complicated. They run the gamut from low pay, high workloads, no reimbursements for overhead costs or support staff and negative attention to the system, Tina Nadeau, a defense attorney and executive director of the Maine Association of Criminal Defense Lawyers, said.
Most current lawyers simply did not have time for more cases, regardless of pay, and the increase is not high enough to compete with what criminal defense attorneys could make in private practice, said Robert Ruffner, a Portland lawyer who has worked indigent cases for much of his career but stopped accepting new cases earlier this year.
“Even with that news coming, there have been attorneys still pausing taking cases,” he said.
All of it comes amid a dispute between the commission and Lyman-based Amy Fairfield, who was suspended from the roster last month — along with an associate — after not complying with a request related to an investigation of her billing practices, the Maine Monitor reported. Fairfield, who was long the top-billing lawyer in the system, accused Andrus of “a targeted campaign” against her in filings to withdraw from nearly 200 cases. Andrus said Fairfield’s filings “don’t fully reflect my experience” but he could not comment on investigative proceedings.
Policymakers have not been able to fully agree on solutions for the system’s problems. The commission proposed $35.4 million in increased funding for the system late last year, but Gov. Janet Mills left virtually all of it out of her budget proposal before lawmakers added roughly half of it back themselves in the eventual deal signed by the Democratic governor recently.
The portion lawmakers added in included a raise half as big as the commission wanted and more than $3 million to pilot a public-defender office in Kennebec County. Former Gov. Paul LePage, a Republican running against Mills in 2022, pushed for a statewide public defender system.
The defense bar has always been wary. Maine “has a pretty good system all the way around except for the fact that the state probably doesn’t do enough for the people doing it,” said William Ashe, an Ellsworth lawyer who recently dropped off the roster. He argued public defenders would likely be overburdened and low-paid with the state assuming more costs.
But advocacy groups including the American Civil Liberties Union of Maine have touted the idea as part of a solution to the problem, with Zach Heiden, the group’s chief counsel, saying the partial legislative progress amid a shrinking roster has not been enough to assuage his concerns that Maine is violating defendants’ constitutional rights to a speedy trial.
“I think it’s going to be necessary for there to be litigation because nothing else has worked,” Heiden said.