A quasi-state agency charged with finding lawyers for those who can’t afford their own has agreed to temporarily lower attorney eligibility standards in an attempt to address a growing backlog of unassigned cases.

The Maine Commission on Public Defense Services voted Monday to make it easier for some private attorneys to get waivers to take on specialized cases, including homicides, domestic violence, child protection and appeals.

These cases would otherwise require two to five years of experience in criminal defense and some training, depending on the type. The commission also voted Monday to accept attorneys who have experience in criminal law, but not exclusively on the defense side. That could include former prosecutors who have limited experience defending clients.

The commission is tasked with providing representation to Mainers who are constitutionally entitled to legal help at the state’s expense. It relied exclusively on private attorneys to do this work until 2022 when it began hiring its first team of public defenders.

Facing criticism and legal action for not having high enough standards for its attorneys, it began reworking is eligibility requirements a few years ago.

But over the last year, the commission has come under heat for a new problem – not providing representation at all, as roughly 650 criminal defendants had not yet been appointed a lawyer as of July 15. A quarter of those defendants were waiting in jail.

There were only 108 attorneys available to take new trial-level cases as of July 18, down from more than 400 lawyers in 2017. In certain counties, and for certain case types, there are no attorneys rostered.

It’s unclear if the temporary changes will make any difference. Some who spoke at Monday’s meeting seemed skeptical.

“I struggle mightily to see the need for this, unless there’s a line of former prosecutors pounding on the door to become rostered on these specialized panels,” said Tina Nadeau, a defense attorney in Portland. “This is a response to a crisis that’s been created by too many cases in the system. Lowering the standards for attorneys who are appointed to the most serious cases that our clients face is not the answer to the crisis. We need to hold strong.”

The commission’s executive director, Jim Billings, has previously suggested lawyers are taking their names off the list because they can’t handle any new cases on top of the ones they have.

Attorneys who argued against the changes Monday blamed a “surplus of cases” and a lack of resources to address them. There were more than 2,200 new cases opened in June, according to the commission’s latest report.

But others, including Gov. Janet Mills, say the commission’s rules are what’s keeping attorneys away.

In a letter sent to members before their meeting, Mills referenced some positive changes that were meant to attract and retain lawyers, including increasing reimbursement rates from $80 to $150 an hour and opening new public defense offices. She said she was dumbfounded that those changes haven’t brought more lawyers back.

“I believe that these rules, while well-intentioned, are overly stringent and that they are limiting the ability of the Commission to attract new attorneys, retain already rostered attorneys, or assign already-rostered attorneys to cases where their skills could be utilized,” said Mills in the letter, which was provided to the Portland Press Herald in response to questions Tuesday about the changes.

‘MINIMAL CHANGES’

Mills also took issue with rules that limit what newly admitted attorneys can do, and those that prevent trial attorneys from representing defendants during their appeals. She wrote that she had heard this complaint from defense attorneys, prosecutors, former judges and advocates.

The governor asked if the commission would consider changes to its system to motivate attorneys to take domestic violence and sexual assault cases where the need is great. She suggested a tiered pay system, but the commission did not vote on that Monday.

Before the vote, Donald Alexander, a commission member and former state supreme court justice, said he couldn’t support the changes because he didn’t think they went far enough.

“We’re making minimal changes to a rule that needs major changes if we’re going to be inviting and welcoming more attorneys to come to the process,” Alexander said. “I think we ought to give the governor’s request some respect and consideration.”

But another commissioner and former district judge, David Soucy, said he couldn’t support the changes because he thought the eligibility requirements were important and had been carefully considered.

Instead of preventing lawyers from getting involved in public defense, Soucy said he believes the commission has created a welcoming environment. He referenced free training opportunities and mentoring programs.

“And yet the lawyers are not jumping on board,” Soucy said. “We’ve made the court the gateway for substance abuse and mental health treatment for poor people. But we don’t have the resources to deal with the mountain of cases this has presented.”

Justin Andrus – who was the commission’s executive director from 2021 to 2023 and now works as a defense attorney – urged against any changes and said these requirements were only put in place because of past failures with performance and attorney accountability.

“We’ve gotten where we are not because the commission’s rules were overbearing – they’re not,” Andrus said. “They’re not yet firm enough. … And the commission is not yet ensuring that representation is what it needs to be.”

Those who voted for the changes also questioned whether these changes would actually lead to more rostered attorneys, but said that it couldn’t hurt to try.

Billings said the existing waiver process already allows him to recruit lawyers who might not automatically meet the commission’s standards.

Since November 2021, the commission has granted almost 100 waivers for experience and training requirements. In that timeframe, only one person was denied.

“We hear quite frequently from critics of the commission that we are too hard to deal with,” Billings said. “I personally don’t put a lot of stock in that. But, if there are lawyers out there that want to do this work and there’s something in our rules prohibiting them from doing it at this time, I’m open to temporarily seeing if the proof is in the pudding, so to speak, and seeing if people do come forward that want to do this work.”