The office that oversees legal services for Maine’s poor is asking for more employees to fix a myriad of financial and constitutional problems identified by watchdog groups.
The Maine Commission on Indigent Legal Services has been under scrutiny as lawyers and legislators alike call for reform. A state agency published a report last year that concluded the commission has little organizational structure, lacks oversight and does not have established policies for attorney billing. The longtime executive director stepped down from his position in December. New leadership has started to make changes but told legislators Friday that more resources are necessary.
“We absolutely, positively are going to require more people to do that job,” said Justin Andrus, the interim director. “For you all and for those who are listening, ultimately we need to be resourced.”
Andrus made his plea to the Government Oversight Committee, which had asked for the latest examination of the commission’s failings. The Office of Program Evaluation and Government Accountability published its first report on the commission in November, and that call for resources was the refrain of the public hearing on its findings.
But it is unclear if and when the commission will get a funding boost. The commission had asked to double its budget from $17.6 million to more than $35 million to add two new positions in the commission office, establish one public defenders office in Kennebec County and another statewide for appeals, and increase the hourly rate for lawyers who do indigent defense work from $60 to $100. The governor proposed an $8.4 billion budget state budget for 2022-23.
Still, multiple representatives from the commission pressed legislators for their support Friday. They emphasized that the existing four employees are not enough to meet current demands, let alone future ones.
“I can see that we’re already making positive change,” Josh Tardy, the commission’s chairman, said Friday. “I do believe our staff is performing at a maximum level, and we’re going to need help. It’s simply unsustainable.”
The report in question focused heavily on billing issues. But the concerns with Maine’s current system are broader than that, and some testified that more resources are needed to guarantee effective and quality legal defense.
A person who is charged with a crime and facing potential time in jail has the constitutional right to a lawyer. If that person cannot afford a lawyer, the government is obligated to provide and pay for one. Maine is the only state that provides those legal services with private attorneys who are reimbursed by the state instead of public defenders.
Nearly two years ago, the nonpartisan Sixth Amendment Center published a report that found Maine’s system begets gaps in legal representation, delays in attorney appointments and possible violations of constitutional rights. That review also identified concerns with attorney oversight, billing and staffing. For example, the report found that the commission’s standards for attorney qualification were too lenient, and there was no process to make sure roughly 600 rostered attorneys were participating in ongoing training. The center issued a list of recommendations, including increasing funding and establishing a public defenders office in Cumberland County.
Robert Cummins, a member of the commission, called Maine’s current system “an embarrassment.”
“It seems anomalous to me to discuss the financial aspects of a commission’s performance when the task of the commission is so woefully underfunded that it becomes a serious question as to whether or not Maine – the executive, legislative and judicial branches – are really, really committed to provide the kind of services our indigents require,” said Cummins, a longtime defense attorney.
Legislators authorized OPEGA in December to examine the commission, and that work is ongoing. The first report, which was the one discussed during Friday’s public hearing, focused on the commission’s system to process payments to private attorneys who represent indigent clients, as well as its oversight structure. The office found that the commission lacks established policies or procedures for payments to attorneys, and the current systems for monitoring or auditing those payments are inefficient and ineffective. It also said the commission is understaffed and does not have clearly defined roles for employees.
“Had the agency been appropriately staffed and the Commission been more functional, it is possible that some of these financial procedure issues may have been mitigated. … OPEGA did not fully establish the root cause for all identified issues,” the report says. “Nonetheless, there appears to be a link between the poorly functioning organizational oversight structure, inadequate staffing, and inadequate financial procedures.”
The Government Oversight Committee asked the commission to make quarterly reports about its progress on financial reforms and other changes. The Judiciary Committee will consider a bill that suggests changes in keeping with the Sixth Amendment Report’s recommendations, but the text is not yet available.
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