Attorney Billing For Indigent Legal Services In Maine Is Under Scrutiny

Nov 15, 2019

The state of Maine spent more than $21 million last year to provide free lawyers to people who cannot afford legal representation in court. And while defending people accused of crimes can be expensive, much of that amount may be due to overbilling.

Maine District Court In Portland
Credit https://www.courts.maine.gov/

That was one finding of a report by the Sixth Amendment Center in Boston, which advocates for indigent legal defense. New reporting from the investigative news service Pine Tree Watch looks more closely at that finding and concludes that oversight of the bills that attorneys sent to the state’s Commission on Indigent Legal Services was so lax that some attorneys were paid as if they had worked more than 80 hours a week, all year, with no vacations or sick time.

Samantha Hogan reported that story for Pine Tree Watch. She spoke with Maine Public’s Nora Flaherty and says the billing system leaves a lot of unanswered questions.

Hogan: They've only looked at billing by individual cases, and so they're seeing a slice of an attorney's year or days that they worked on a case, but they were never looking at it holistically. They weren't looking at it on a calendar. When a new alert system came online in June, they were able to start to see when attorneys were billing more than 12 hours in a calendar day. And this has started to raise additional questions about the accuracy of the bills that attorneys are submitting for representing Maine's poor.

Flaherty: There were a few attorneys who popped up in your investigation, most notably attorneys at the firm at Fairfield and Associates, which billed $1.46 million to the state for indigent defense in fiscal year 2018. That firm worked on some high profile, complicated cases, but they also billed a very large number of hours. They declined to speak to you for this story, but tell me what you found.

When you look at five years of financial data that underpins the Sixth Amendment Center report, and underpins our reporting as well, you see that they really had an exponential growth in their caseload and in their earnings. They control 7% of indigent cases or court-appointed cases in FY 2018, and they were making $1.46 million off the defense of Maine's poor in 2018. So they are making more money, and they're controlling more cases than any other firm.

Within the Commission on indigent legal services there has been some disagreement about spending oversight, with the Commission's executive director generally finding that there hasn't been overbilling.

So the Maine Commission on Indigent Legal Services is a very small state agency. They only have three to four employees that work inside their office. And yes, John Pelletier and Lynn Nash, who is the accountant technician for the state agency, do butt heads quite often on whether costs are appropriate or not.

Lynn Nash spoke to me extensively about her concerns that there is overcharging occurring for attorneys and experts in law firms who are providing services to Maine's poor.

And John Pelletier, on numerous occasions, has ultimately concluded that there's not evidence of improper billing, that there is not evidence of fraud occurring. He has only ever brought disciplinary action against one attorney, and that attorney is no longer rostered with the Maine Commission on Indigent Legal Services. That's one attorney in nine years. What our reporting shows is that there are people who billed as much and more than that attorney who was actually found to be billing more than 24 hours in a day to be inflating the hours that he was working on-discovery. So Lynn Nash has had major concerns about how much money may have been flowing out of the agency that also fell into that area, that gray area where the bills might not have accurately reflected the work that attorneys were doing on cases.

Now the Commission is meeting next week to talk about how to address some of the issues in the system that were raised in the report and recommendations by the Sixth Amendment Center. How would those recommendations address these issues?

So the Commission is meeting to speak generally about the findings of the Sixth Amendment Center report. They are an advisory arm of this state agency. Ultimately, it's going to be up to the Judicial Committee in the state legislature to put forward a bill that would actually try and implement some of the findings and recommendations in the Sixth Amendment Center report. I have spoken with Senator Michael Carpenter, who is the chair of that Committee, and he does plan to see that bill, or perhaps in another emergency bill, also be introduced and go through the legislature in 2020. We're also going to see government oversight continue to look at this along with OPEGA.

The Public Hearing on the Sixth Amendment Center Report will be next Tuesday at the State House in Augusta.

Ed note: this interview has been edited for length and clarity