The temporary director of Maine’s public defense agency likened his first month on the job to a doctor performing “triage” as he has tried to restore financial and operational integrity to a fraught state agency.
Justin Andrus intended to reopen his private law practice late last year, but instead was asked to help the Maine Commission on Indigent Legal Services, or MCILS, get back on track. It’s been one month since he joined as interim executive director of the agency responsible for training and supervising private lawyers who defend the poor against criminal charges and other legal matters on behalf of the state.
Gov. Janet Mills, a Democrat, criticized and withheld new funding from the agency after an investigation by The Maine Monitor and ProPublica revealed that its former director, John Pelletier, hired lawyers convicted of crimes and attorneys disciplined for serious professional misconduct. Pelletier, who resigned in December, also failed to adequately track the agency’s finances since the office opened in 2010, according to a government report released in November.
“It’s been hectic and fast-paced and high energy getting on top of all of that simultaneously,” Andrus said in a recent interview with The Maine Monitor.
His role is intended to last 90 to 120 days while the commission that oversees the defense agency searches for a permanent director. Two months into the search, it has received nine applications, one of which has already been withdrawn. Interviews are expected to begin in a week.
David Carroll, the executive director of the Sixth Amendment Center and expert on public defense systems, told lawmakers this month that he had received calls from multiple people interested in the position. But Mills’ resistance to increase funding for the agency before changes are made, and her choice not to finance any of its proposed reforms in the next two-year budget, has deterred potential applicants, he said.
“The combination of a low salary, big problems and public reports that policymakers are considering not giving any more money to fix these problems is decreasing the number of people that want to apply,” Carroll told lawmakers.
The advertised salary for executive director is between $88,000 and $116,000 a year.
Bob Cummins, a career criminal defense lawyer and appointed member of the commission that oversees MCILS, shared Carroll’s concerns that they would not be able to find a permanent replacement before their agreement with Andrus expires.
“Imagine if we lose him. Who’s going to take this job? Nobody,” Cummins said.
Power to make change for public defense agency
Andrus said that for him to want to remain, the job would need to come with the financial resources and authority to do it properly. Meaning more office staff to meet the agency’s existing obligations as well as control of its operations and oversight.
Just four full-time employees, including Andrus, currently oversee 375 private attorneys and nearly 30,000 new cases a year.
Andrus said it is not possible for the staff to accomplish in a reasonable amount of time all the jobs set in state law or the Sixth Amendment, which guarantees people accused of crimes the right to a lawyer if they cannot afford to hire their own.
“Perhaps if the executive staff continues to work an excessive number of hours it’s possible to sort of grit our teeth and white-knuckle doing it, but I don’t think that’s ultimately sustainable,” Andrus said.
Maine is the only state that does not employ any public defenders. MCILS instead maintains lists of private attorneys whom judges can assign to criminal defendants. But at least 2,000 case assignments for serious charges — including murder cases and children charged with felonies — in a five-year period went to lawyers that MCILS had not screened to ensure they had the proper qualifications, an investigation published this week by The Maine Monitor and ProPublica found.
A chronic lack of oversight by MCILS of its contracted attorneys and low training standards has finally come to a head. And this may be the last legislative session that lawmakers and the agency will be able to decide to make changes on their own and not under a court order.
“At this point, we are concerned that this non-litigation path that we have devoted so much energy to is not getting the job done,” Zach Heiden, chief legal counsel with the ACLU of Maine, told lawmakers this month.
Instead of rushing to court, Heiden has been a regular observer and participant at the commission’s meetings. It is the practice of the ACLU of Maine to use alternatives to litigation to address problems, even when fundamental constitutional rights are at stake, he said. But time may be running out.
April will mark two years since the Sixth Amendment Center released a report that documented systemic deficiencies with how Maine provides legal services to its poor. MCILS is still not able to differentiate between attorneys who are fit or unfit to represent indigent clients, Heiden said.
“Maine’s system is not inadequate. Maine’s system is non-existent,” Heiden said.
Sen. Lisa Keim (R-Dixfield) has made indigent defense a focal issue of the Judiciary Committee since 2016. She was skeptical the courts would side with the ACLU if legislators did, in fact, move forward with reform this session. But continued pressure from the ACLU was good, and the state should be taken to court if it didn’t make changes, she said.
Keim said Mills should have shown leadership and funded some of the commission’s initiatives rather than leaving it to lawmakers to potentially find money in a cash-strapped budget. General Fund revenues are projected to be $395.8 million lower than expected in the next two budget years because of the pandemic, according to the state’s economic forecasting committee.
The state’s first public defender office, a statewide appellate public defender office, more oversight staff and the first raise for court-appointed counsel since 2015, estimated to cost $35.4 million annually, were left out of the governor’s proposed budget earlier this year.
Keim said she tried to rally support for public defense spending, but the effects of Mills’ resistance to new spending can already be seen.
“We’re inviting people into a project that they feel they can’t win,” Keim said.
This month, the Judiciary Committee unanimously endorsed adding $60,000 to the agency’s current budget to cover four months of salary and benefits for two new staff positions at MCILS. This would be added to the state’s supplemental budget. The cost to support the two positions annually is estimated to be nearly $180,000.
It is a fraction of the 10 positions commissioners proposed for the upcoming biennium budget.
“I have no doubt that I could use 10 people allocated as they proposed, full-time without waste. Whether I can do it with fewer remains to be seen,” Andrus said.
The proposal has a long way to go before MCILS will have access to the money. The Appropriations and Financial Affairs Committee will need to review the proposal and the supplemental budget will eventually be voted on by the entire legislature. By law, the government must have a balanced budget at the end of the fiscal year, which ends June 30.
Setting no conditions on justice
Andrus is no stranger to the work of MCILS. Throughout his 18-year legal career, Andrus has accepted court appointments to defend adults charged with crimes and parents in child protective custody cases.
His first exposure to defending the poor was at the Cumberland Legal Aid Clinic while he was enrolled at the University of Maine School of Law. After graduating and passing the licensing exam in 2002, Andrus joined a law firm and took occasional appointments at a time when judges were still in charge of selecting attorneys. Judges also determined how much defense attorneys should be paid — a conflict of interest that resulted in the state opening an independent defense agency, MCILS, in 2010.
Andrus later wove court-appointed work into his practice as a solo attorney and as the head of a private practice.
“Indigent work is important to me because I think really competent lawyers need to do that work to ensure that we’re not conditioning access to justice on the ability to pay for it,” Andrus told The Maine Monitor.
National experts on public defense have been critical of Maine’s early representation of indigent clients.
At many people’s first appearance in court, defendants have access to a “lawyer of the day.” The volunteer lawyer is supposed to be available to advise all defendants regardless of whether there is a risk of jail time or not. Experts have warned that there are often too many clients for the lawyer to adequately advise each defendant of the collateral consequences of their plea.
Andrus volunteered to be a “lawyer of the day” for a period of his career. But he opted out of the service later because he was not satisfied he could do a constitutionally adequate job, he said. He was similarly concerned with a long-standing practice at MCILS of allowing attorneys to step in to cover potentially critical stages of a case.
“We don’t want 50 lawyers standing in a courtroom waiting for their five minutes at the lectern,” Andrus said. “On the other hand, we need to make sure that the proceedings where people are covering for each other really are administrative as opposed to substantive because clients are entitled to — and good representation I think demands — that the lawyer who knows the case, do the case.”
Immediately before joining MCILS, Andrus worked as assistant bar counsel investigating and prosecuting attorneys for professional misconduct with the Board of Overseers of the Bar.
At least 26% of attorneys disciplined in the past decade by the board of overseers for serious professional misconduct were approved or allowed to remain eligible for case assignments through MCILS under Pelletier’s leadership, a joint investigation by The Maine Monitor and ProPublica found last year. Pelletier rarely exercised his right to permanently ban attorneys from working on state cases, even after the board of overseers suspended an attorney who routinely tried to solicit a court-appointed client for sex, the news organizations found.
Andrus said he joined the board of overseers to promote the healthy and ethical practice of law. He manned the ethics helpline that attorneys can call for advice and taught continuing legal education courses. He had planned to return to private practice, in part, to focus on supporting and educating lawyers again.
In late February, Andrus presented a package of rule changes to the commission that spells out criminal convictions and professional discipline that would disqualify an attorney from working on cases. Andrus has already opened investigations into some lawyers contracted with MCILS, after receiving complaints. He declined to say how many.
Josh Tardy, the chairman of the commission, said Andrus’ time with the board of overseers was relevant and helpful for his new role as interim director.
“He has a reputation as a highly competent attorney who understands from the perspective of a rostered attorney what the practice is like, and he has the management and leadership skills, reputationally, to step into this important role as interim director,” Tardy said.
Andrus said the circumstances of each complaint mattered, but actions adverse to clients would not be tolerated.
“We should not be waiting for a report that somebody has done something so bad that somebody else who witnessed it feels compelled to call us,” Andrus said. “We should be identifying the needs of our attorneys — in terms of their needs for performance — and we should be addressing them. That should look like mentorship. That should look like education. That should look like correction, where it’s necessary.”
Last September, before Andrus was hired, commissioners agreed to pay more than $92,000 to develop a five-day minimum standards training course for Maine lawyers to cover “the basics of ethical, constitutionally competent lawyering.” There is no time frame to implement the course.
Proposed changes foster unity and conflict
Andrus and deputy director Eleanor Maciag restored operations at the agency to a sustainable level within his first two weeks, he said. They made payments to attorneys, approved attorney applications and reviewed requests for funds to hire experts.
Tardy said he approached Andrus about the job in late December without consulting Maciag.
Andrus formerly employed the deputy director’s spouse, Andrei Maciag, at his private law firm. Both men were contracted to work on court-appointed cases through MCILS. Andrei Maciag now works as a prosecutor for one of the district attorney’s offices.
Andrus said his connection to the deputy director’s husband does not pose a conflict of interest.
“I’m not going to discuss employment matters related to my old firm. But I do not perceive a conflict of interest,” Andrus said.
Still, the changes during Andrus’ brief tenure at MCILS are being recognized by some lawmakers as a step in the right direction.
“Mr. Andrus certainly wants to move everything in the proper direction,” said Rep. Jeffrey Evangelos (I-Friendship), who serves on the Judiciary Committee and is an advocate for defendant and inmate rights.
MCILS, national public defense experts and advocates made “unprecedented admissions of the shortcomings” of Maine’s indigent defense system during a meeting of the Judiciary Committee this month, Evangelos said. He was optimistic the frank testimony had unified committee members in support of making and funding reform this year.
Andrus has also initiated several changes from within the agency to build accountability that the governor is seeking from the agency.
Andrus is in conversations with the agency’s software vendor, Justice Works, to upgrade the billing system to add more safeguards against data entry errors and alert the agency to high- and low-value invoices that may indicate a risk of poor performance by an attorney. Among his proposals is a set of rules that hold attorneys accountable for the accuracy of the time they enter into the state’s billing system.
Commissioners have endorsed Andrus’ plans to eliminate some manual review of low-value invoices, which he believes does not result in the actual detection of potential fraud.
Andrus also agreed to periodically report updates and progress to lawmakers on the Government Oversight Committee, which has coordinated with an independent state agency to review MCILS’s performance.
Each change is a double-edged sword.
Lawyers thanked Andrus for clearing a backlog of unpaid invoices, but also described plummeting morale among court-appointed attorneys.
Lawyers were resisting his proposed requirement that they keep seven years of detailed time records so that the agency could audit payments and assess the quality of representation in state cases.
Andrus was also met with resistance from the private bar in implementing a screening process to verify the qualifications of attorneys representing parents in child protective custody cases and parents at risk of having their parental rights terminated. Less than half of the lawyers who previously accepted those assignments were willing to fill out the two-page application he created or abide by the commission’s eligibility rules.
“I believe that we should follow our rules and if our rules are unworkable for some reason, or not the right rule, we should change our rules,” Andrus said. “But we should not be simply not following our rules on an ad hoc basis.”
The commission will hold a public hearing on proposed changes to the billing standards and disqualifying behavior on March 18.
Editor’s Note, Feb. 26, 2021, 7:35 p.m.: An earlier version of this story misstated that a lawmaker perceived Justin Andrus’ professional relationship with Andrei Maciag as a conflict of interest. That statement was misleading and has been removed.
