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Commission head warns low-income Maine defendants could go unrepresented as attorney roster shrinks

Indigent Defense
Robert F. Bukaty
/
AP file
In this Wednesday, May 31, 2017, file photo, a court-appointed "lawyer of the day" explains a legal implication to a person charged with a crime at Cumberland County Superior Court in Portland, Maine.

The number of lawyers in Maine willing to represent low-income clients continues to decline at an alarming rate, prompting the head of the agency that oversees the network to warn that it can no longer guarantee a lawyer for all defendants.

Maine is the only state that relies entirely on private attorneys to represent defendants who can’t afford to hire their own lawyers. But as of last week, just 186 attorneys around the state were willing to take on new cases — down from a roster of roughly 400 attorneys just three years ago.

Justin Andrus, executive director of the Maine Commission on Indigent Legal Services, told commission members on Monday that the system has reached a critical juncture.

“We are at the point where we are not staffing all of our cases,” Andrus said. “I have come in here month after month saying we are pulling it off. We are no longer pulling it off.”

The ranks of participating attorneys have fallen dramatically in the last two years. At the same time, Maine now has a massive backlog of criminal cases resulting from courtroom closures during the COVID-19 pandemic. And case numbers are rising. While public defender systems across the country are grappling with similar challenges, Maine is also facing a lawsuit over this very issue.

In March, the ACLU of Maine filed suit claiming the state is failing to fulfill its constitutional obligation to adequately represent low-income defendants. That case is still pending and a state judge last month allowed ACLU to pursue the case as a class action lawsuit, opening it up to thousands of potential defendants.

But commission member Ronald Schneider picked up on another statistic from Andrus on Monday — that just 33 lawyers are carrying 49% of the thousands of open cases in the state.

“I don’t know how we keep pressing at this point saying it’s acceptable that we’re not staffing cases, that we have people overloaded, that we have half of our cases staffed by 33 lawyers,” Schneider said.

Earlier this year, state lawmakers set aside more than $1 million for the commission to hire five public defenders as a pilot project. The public defenders are supposed to help represent clients in rural areas where few private attorneys are willing to do the work.

But Andrus said the commission, after moving forward aggressively to create the two small offices, has gotten “nowhere” in filling those positions in recent months because of paperwork issues with the state’s budget and human resources offices. That drew a frustrated response from Rep. Thom Harnett, a Gardiner Democrat who co-chairs the legislative committee that helped negotiate the bipartisan compromise to begin moving Maine toward a public defender system.

“And to hear that the bureaucracy is throwing up obstacles to getting those positions filled is disheartening to me,” Harnett told the commission. “I would hope that the bureaucracy tries to work to improve the system and not to continue to put obstacles in the way.”

Andrus identified low compensation as the top obstacle to retaining or attracting new attorneys. As part of a budget proposal, the commission is recommending the state increase the hourly rate from $80 to $150 beginning next July. That proposal will have to approved by state lawmakers, however.