Changes Could Come To Indigent Legal Services In Maine Amid Billing Scrutiny

Nov 20, 2019

Changes could soon come to the system that delivers free legal services to poor people in Maine facing criminal prosecution.

That system is under new scrutiny for lax oversight of the billing practices by the private attorneys the state commissions to defend low-income clients. And a scathing report released in April details significant shortcomings that could affect the quality of that legal representation.

Overhauling the system quickly may be necessary to avoid a costly lawsuit.

A landmark 1963 U.S. Supreme Court decision required all states to provide an attorney to poor people unable to afford their own lawyer. Forty-nine states now meet that requirement through some version of a public defender’s office and a staff of attorneys.

Maine is the only state that hires and assigns private attorneys to what are known as “indigent” cases. But a report released in April by the nonpartisan Sixth Amendment Center found that the system is failing indigent clients, and possibly taxpayers.

“It found that attorney qualification standards are too lenient, that training is inadequate and that oversight is practically nonexistent,” says Alison Beyea, director of the American Civil Liberties Union of Maine.

Beyea summarized the report during Tuesday’s hearing by the Maine Commission on Indigent Legal Services, which oversees the system. She told the commission about a case the ACLU won earlier this year after it challenged a shoplifting conviction that could have stripped a woman’s access to addiction treatment. She says the woman’s first attorney, rostered by the indigent legal services commission, had previously been suspended from practicing law for incompetence, and he was later reprimanded by the Board of Bar Overseers for conduct unworthy of an attorney.

“In other words, this commission continued to hire a lawyer who had been sanctioned by the Bar of Overseers three times, including a suspension,” Beyea says.

The Sixth Amendment report also scrutinized the billing by the private attorneys rostered by the commission. And it prompted additional investigation by Pine Tree Watch, a nonprofit news service that homed in on an explosion in the legal services budget, from roughly $10 million in 2011 to more than $21 million last year, and potentially $2.2 million in overbilling by private attorneys.

Pine Tree Watch also examined billings by Fairfield and Associates, a law firm that charged the commission $1.5 million last year, which prompted an investigation by the commission’s director.

On Tuesday, attorney Amy Fairfield defended her firm’s work and invited the commission to examine its billings.

“I want to make it very clear that I will open my books, I will open my doors, I will do whatever anybody feels they need to see, or do, with regard to how our office runs,” Fairfield says.

Vouching for Fairfield’s firm was one of its biggest clients, Anthony Sanborn.

“I don’t think any money is ever wasted on defending somebody, especially if they are innocent,” Sanborn told the commission.

Sanborn was convicted in 1993 for murdering his girlfriend Jessica Briggs, but attorney Fairfield in 2017 reached a deal two years ago that ended his 70-year sentence.

It was Fairfield’s first postconviction review, and she billed the indigent legal services commission more than 2,000 hours. Those billings highlighted gaps in the commission’s oversight, although the subsequent review by the commission director drew no sanctions.

But Fairfield says the scrutiny reveals a fundamental obstacle in providing free defense to the poor — public perceptions of criminal defendants.

“Certainly we’ve never been a particularly sympathetic group and unfortunately our clients aren’t either,” she says.

Numerous studies of indigent defense programs around the country have found a litany of problems — from underfunded public defender offices to court-appointed attorneys who are swamped with hundreds of felony cases in a single year.

According to Jamesa Drake, president of the Maine Association of Criminal Defense Lawyers, attorneys rostered by the Maine indigent legal services commission often get a bad reputation.

“Rostered attorneys are often maligned as grifters who are looking to take advantage of the system,” she says.

Such arguments seemed to resonate with commissioner Ronald Schneider, an attorney at Bernstein and Shur who told Anthony Sanborn that his recent release from the Maine State Prison was because his court-appointed attorney worked hard to exonerate him.

“What’s particularly unfortunate is that you received extremely high-quality, diligent defense that cost a lot of money, but not nearly as much as it would cost to hire me, because I charge a whole lot more than $60 an hour,” he says.

The costs of providing indigent legal defense are likely to stay under the microscope as the commission eyes changes to the current system.

Some are advocating for Maine to adopt a public defender system, although previous proposals in recent years have failed to gain traction in the Legislature because of concerns over costs and pushback from defense attorneys.

But the threat of a lawsuit alleging that Maine’s current system is inadequate looms and was floated during testimony by the ACLU on Tuesday. That means the Maine Commission on Indigent Legal Services is already contemplating changes in billing practices and oversight of rostered attorneys that could come as soon as next year.

Originally published 5:10 p.m. Nov. 19, 2019