The availability of criminal defense attorneys is at an all-time low in Maine for defendants who cannot afford to hire their own attorney.
There are 224 attorneys currently accepting court-appointments to criminal or child protection cases statewide, which is down from 410 lawyers in May 2019, according to the Maine Commission on Indigent Legal Services, or MCILS.
The decrease of available attorneys coincides with an increase in cases where the defendant needs a lawyer appointed at the state’s expense. Lawyers contracted to provide indigent legal services had opened a record 31,257 cases by the last few days of the fiscal year, which exceeds the annual average of approximately 26,500 cases.
The state agency said it has been able to assign an attorney to every case that requires one, but the shortage of eligible lawyers increases the risk that there eventually will be a case that it cannot find counsel for a defendant who is entitled to one, said MCILS Executive Director Justin Andrus.
“The first individual who doesn’t get an attorney, or doesn’t timely get an attorney, is going to be harmed — perhaps irrevocably,” Andrus said. “And while there might be a temptation by some people to look at that and say, ‘Well, it’s only one out of 31,000 cases.’ It’s that person’s one case. It’s their everything.”
Low pay, high caseloads
The shortage of available lawyers has become an acute issue in some of Maine’s rural areas, including Somerset, Washington and Piscataquis counties.
“224 is not enough. We have attorneys that are qualified but not taking cases,” said Commissioner Donald Alexander, who is a retired judge.
Some attorneys have stopped accepting cases because the courts are assigning them too many cases at once, he said. There is a statewide backlog of unresolved cases and some courts are not accommodating lawyers’ schedules, which is leading to conflicts, he said. The result is less attorneys to spread the record caseload among.
The number of unresolved felony and misdemeanor cases has increased in nearly every court in Maine compared to before the pandemic, according to Judicial Branch data from June 2019 to June 2022.
Commissioner Matthew Morgan, an Augusta-based attorney who is eligible for court-appointed cases, said the backlog and compensation are driving lawyers away.
“Based on my personal experience receiving appointed cases and my conversations with other rostered attorneys there are many reasons for not taking new appointments, but the low hourly rate and having too many existing appointments — often unresolved due to pandemic related delays — are probably the two biggest reasons.”
State lawmakers raised the hourly reimbursement rate for court-appointed attorneys from $60 to $80 an hour in 2021. But they rejected a proposal to raise lawyers’ compensation again to $100 an hour earlier this year.
The majority of commissioners by a voice vote on Tuesday supported proposing a $150 an hour reimbursement rate in 2023 to attract and retain defense attorneys. That proposal would go to the state Legislature during the budget discussions for 2023 and 2024.
Allegation of misconduct lead to suspension
Even with a short supply of available lawyers, allegations of professional misconduct have required MCILS to quietly make cuts to protect clients.
Dan Umphrey, an attorney in Caribou, cannot accept new cases to represent the state’s indigent in light of a recommendation in June that his license to practice law be suspended.
A three-person grievance panel of the Board of Overseers of the Bar — a quasi-judicial agency that monitors attorney conduct in Maine — recommended that the state seek to suspend Umphrey’s license following an investigation of a complaint from a former client about his handling of a privately retained case. Bar counsel agreed to pursue the suspension in court following a hearing on June 14.
Umphrey did not attend his hearing and did not respond to the board of overseers’ investigation.
Andrus, as the head of Maine’s public defense agency, also suspended Umphrey on June 23.
“Attorney Umphrey has been determined by the Board of Overseers of the Bar, at least at the moment, to have engaged in conduct that from the perspective of the grievance commission that warrants suspension. That’s not my decision, that’s their decision. Where I have an attorney that’s been subject to those findings, then because of the risk to indigent defendants and their inability to choose their own counsel I needed to do what I did,” said Andrus, who previously worked as an attorney for the board of overseers.
Umphrey didn’t answer a call to the phone number he registered with MCILS and an automated message said the voicemail box had not been set up. Umphrey also did not respond to an emailed request for comment.
Umphrey was previously eligible to represent defendants on the state’s behalf in felony and misdemeanor cases and to work as the “lawyer of the day” to provide legal advice to defendants during their first appearance in court, according to MCILS records.
With Umphrey no longer able to work on court-appointed cases, there are just 15 attorneys who are actively accepting new felony and misdemeanor assignments from the Aroostook County courts, Andrus said. (Though additional attorneys based in Aroostook and other counties are accepting assignments to some specialized case types, such as homicides and sex offenses, in Aroostook County).
The limited pool of attorneys in Aroostook County is a concern, Andrus said.
A recent analysis by MCILS found that 22 defendants had collectively spent in excess of 1,300 days without counsel, including some of who were incarcerated at the Aroostook County Jail without an attorney assigned to represent them and advocate on their behalf.
Court clerks were sometimes delayed in finding an available lawyer even after a judge granted a defendant’s request to be appointed an attorney by the state. MCILS also found that clerks in Aroostook County were appointing some attorneys who were not eligible for certain case types. Andrus said attorneys were asked to withdraw or find qualified co-counsel in each of those cases.
Umphrey worked with the law firm Solman & Hunter in Caribou, Maine at the time of the complaint. The law firm declined to immediately comment and didn’t return a reporter’s message.
Umphrey’s same client was awarded an undisclosed sum of money by the board of overseers’ fee arbitration panel in March.
Help is far away
Maine officials have few options to bolster the stock of attorneys working in rural Maine and long-term solutions are several months away from putting lawyers on the ground.
MCILS has the authority to hire five public defenders with the start of the new fiscal year on July 1. The new positions were approved as part of a bipartisan budget agreement by state lawmakers earlier this year, but the hiring process will likely take several months.
The University of Maine School of Law is also in ongoing discussions about opening a legal aid clinic in Fort Kent — a community in Aroostook County on the Canadian border — for students to work on cases, Andrus said. Provisionally licensed “student lawyers” would work on cases similar to the Cumberland Legal Aid Clinic, which has served the southern Maine counties of Cumberland, York, Sagadahoc and Androscoggin for more than 50 years. The northern clinic is not yet open.
Neither of these plans will immediately add more lawyers on the ground to work on cases in Maine’s rural counties, Andrus concedes.
The solutions that lawmakers should consider are increased pay for court-appointed attorneys so they can afford paralegal and billing assistance, said Commissioner Alexander. The state also needs to look at employing more full-time public defenders to directly work on cases where there are shortages, he said.
“Lots of attorneys are basically doing their practice with a computer and a cell phone,” said Alexander, who warned that’s not enough support.
MCILS is also speaking with professional organizations for Maine lawyers about how to get their members to train and apply to be court-appointed lawyers. A small number of experienced lawyers based in Portland and southern Maine have recently joined the list of eligible attorneys, Andrus said.
But Andrus said he is reluctant to send attorneys from southern Maine to Aroostook County, because of the distance the lawyers would need to travel to meet with their clients. A Portland attorney would need to travel more than 300 miles to attend a court hearing in Fort Kent or 250 miles to see a client in the Aroostook County Jail.
“We are staffing cases, but it continues to get harder,” Andrus said. “And it gets harder because we don’t have enough attorneys that want to be in the program.”
Samantha Hogan covers government accountability for The Maine Monitor. Reach her at firstname.lastname@example.org.