AUGUSTA — Attorneys who represent indigent defendants and the commission created five years ago to oversee their training and payment will oppose Gov. Paul LePage’s proposed changes to the system at a hearing Thursday before the Judiciary Committee.

LePage has proposed creating a system in which law firms or groups of attorneys would contract with the state to provide legal services to: indigent defendants facing jail time; juveniles charged with crimes; indigent parents who are subject to child protection proceedings; and individuals facing involuntary commitment for mental health services.

The commission’s budget for the current fiscal year that ends June 30, is $18.3 million, up from nearly $13.1 million in 2009, the year before the commission was created, according to John Pelletier, its executive director. That increase includes a raise for attorneys from $50 to $60 per hour implemented over the past two years.

Indigent legal defense services are delivered under a contract only in Somerset County and only in criminal and juvenile cases.

The contract system in Somerset County has been in place so long that no one is sure when it was implemented, Pelletier said last week.

The contract pays the group $272,250 per year but does not include homicides, which would be paid at the hourly rate. If all three attorneys were to have conflicts with a defendant, an attorney outside the contract would be appointed.

Skowhegan-based attorney Philip Mohlar, one of the attorneys under contract, said the system works well in Somerset County but he was unsure whether it would be as successful in every county in Maine.

“I could see it readily working in smaller, more rural counties provided they have enough qualified lawyers,” he said earlier this week.

Mohlar said it was “tricky to figure out the caseload” for himself and his colleagues. There were 2,521 criminal cases filed in Somerset County courts in the fiscal year that ended June 30, 2014, according to the judiciary’s annual report, the most recent year for which data is available, but not every defendant would have qualified for court-appointed counsel.

“The three of us stay fairly busy, but I don’t think any one of us feels overloaded,” Mohlar said.

In every other county in the state, more than 500 individual attorneys are appointed to represent defendants and parents by a judge from a list created by the commission. Attorneys must apply to the commission and be approved, based on experience and years in practice, to be put on the list.

The commission does not keep track of cases the same way the court system does. Attorneys submit vouchers once a case is resolved, which may or may not be in the year it was assigned. In the fiscal year that ended June 30, 2015, the commission paid 31,588 vouchers, up from 28,117 the previous year.

The court system, which assigned and paid lawyers prior to 2010, advocated for the creation of the commission, in part, because of the difficulty in predicting how much funding would be needed each year to pay attorneys to represent defendants. LePage put forward the current legislation for similar reasons, according to Jonathan P. LaBonte, director of the governor’s office of policy and management.

“The governor’s aim is threefold: cost predictability and stabilization by having a more centralized management system; quality assurance through oversight and training, made more efficient by reducing the number of contracts; and an increase in indigent advocacy through a chief public defender able to advise the Legislature on how their priorities affect the cost of indigent defense system,” LaBonte said Wednesday in an email.

If passed as proposed, LD 1433 would create the Office of the Public Defender within the commission. The public defender, who would be appointed by Maine’s governor to a five-year term, would be responsible for administering indigent legal defense services, a job now performed by Pelletier and his deputy. The commission would continue to oversee the training of attorneys, the bill said.

The cost of creating the office is not included in the bill. It also does not include projected savings.

Commissioners voted 4-0 Tuesday, with one commissioner absent, to oppose the bill. Pelletier told members of the Judiciary Committee at an informational session last week that for the first time since its creation, the commission would not be asking for more money in the supplemental budget.

“The commission’s budget proposal for the current biennium, which was adopted by the Legislature, built in cost increases based on the history the commission had observed during its first four years,” he said. “[Accounting] for the increased rate of pay, costs are actually flat or up only slightly. As a result, the commission finished the first half of the current fiscal year with unspent funds of just under $500,000.”

In August 2011, the commission sought and received an additional $1 million to cover a shortfall for the budget year that ended June 30, 2012.

The Maine Association of Criminal Defense Lawyers outlined its opposition to LD 1433 in a letter dated Nov. 16.

President James Billings said there’s no indication the current system is flawed or that the proposed contract system would save money without compromising justice.

“Maine has a long, proud, independent history of local lawyers providing indigent legal services at either volunteer or steeply discounted hourly rates that predates the existence of the commission by decades,” he said. “As a result, Maine has enjoyed one of the most cost-efficient systems for the provision of indigent legal representations. This bill is the proverbial equivalent of throwing out the baby with the bath water.”

The Maine Prosecutors Association, made up of lawyers in the state’s eight prosecutorial districts and in the Maine Attorney General’s Office that prosecute defendants, will not take a position on the bill, according to Geoffrey Rushlau, the district attorney for the midcoast, who often testifies before legislative committees on behalf of the organization.


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