Gov. Janet Mills appears hesitant to call a special session to consider a $13 million emergency funding request from the Maine Commission on Indigent Legal Services, according to emails from her office.
The commission sent a letter to Mills last week, saying it fears the agency soon will run out of attorneys to provide legal representation to low-income Mainers.
But Mills said she was “concerned” that the commission has not made adjustments to allow more lawyers to join its roster, according to emails included in Tuesday’s MCILS agenda. In order to get new money from the state budget, the governor or a majority of each legislative caucus would have to agree to call a special legislative session.
Maine is the only state in the nation without a public defender’s office. Although the state recently agreed to create its first team of public defense attorneys, most cases still will be covered by private attorneys paid by the state to represent indigent Mainers, as is required by the U.S. Constitution. The commission oversees the list of attorneys.
Commissioners agreed in late September to ask the state for a $13.3 million supplemental appropriation to increase the hourly rate it pays lawyers in a bid to bolster its dwindling roster of attorneys. There were 164 attorneys taking new appointments in Maine last month, compared to 280 in January.
Executive Director Justin Andrus has said he believes increasing the hourly rate from $80 to $150 would prevent lawyers from leaving, and attract new and returning counsel. But in order to pay the higher rates, the Maine Legislature would have to come together for a special session and authorize that funding before the next fiscal year begins in July 2023.
“We understand that it is a busy season for elected representatives,” Commission Chair Joshua Tardy wrote in a letter to Mills last Wednesday. “We would not make this request if we did not believe that our ability to uphold the state’s obligation to its people were not at risk. MCILS continues to see a decline in the number of private attorneys willing to shoulder the load of safeguarding the Sixth Amendment, while the rate at which new cases accrue continues to exceed pre-pandemic levels and the backlog of unresolved cases in the criminal justice system persists.”
Mills, who is in a tight reelection contest against former Gov. Paul LePage, responded that evening, asking if the agency had done enough to recruit newly licensed attorneys.
“What effort have you made to encourage these new lawyers to represent indigent clients and reduce any barriers to their serving these clients?” Mills asked, citing “dozens of people” who just passed the Maine Bar. “How have you worked with the judiciary to encourage lawyers from every firm in Maine to designate members of the firms to take court-appointed cases and get courtroom experience?”
The Maine Board Bar of Examiners reported roughly 120 people had passed the state bar exams in July, and 25 people passed in February. The Maine Bar Examination happens twice a year.
Andrus wrote back, saying that commission staff members plan to be at the upcoming swearing-in ceremony for new attorneys, as well as other training events to attract new faces to the organization.
Last month, Donald Alexander, a former Maine Supreme Judicial Court justice who joined the commission in 2021, sent the rest of the commission a list of ideas to attract and retain more private attorneys. Mills addressed Alexander’s recommendations in her email to Andrus.
“I have reviewed some comments from Commissioner Alexander and am concerned that you have not made adjustments to your own rules and guidelines to allow more lawyers to join the ranks of indigent counsel,” she wrote.
REQUEST TO EASE STANDARDS
Alexander asked other commissioners Tuesday to consider one specific suggestion: the easing of standards that private attorneys must meet to join the agency’s roster for specific types of criminal cases. That includes experience requirements related to how long they’ve been practicing, the types of cases they’ve handled and how many jury trials they’ve recently had. For some of these standards, interested attorneys can apply for a waiver.
“I think that we just ought to have much more generalized standards, as existed before,” Alexander said.
Tardy said Tuesday that the commission could form a subcommittee, where members review these standards for possible changes.
During public comments, defense attorney Tina Nadeau told the commission those standards are meant to ensure the quality of defense that clients receive. She said they were created by rostered attorneys, following critical reports of Maine’s indigent defense system by the state’s watchdog agency in 2020 and the independent Sixth Amendment Center, based in Boston, a year earlier.
“Our clients deserve better. They are entitled to better under the Constitution,” Nadeau said. “Making it easier for anyone to do this work is not the answer.”
Andrus also wrote Mills that his office is reviewing applications for five new public defender positions that lawmakers agreed to create in April. The governor signed that bill into law on May 3.
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