New rules aimed at protecting low-income people from having ineffective counsel in Maine’s indigent defense system took effect at the start of this year, as more than 300 cases still await a defense attorney to be assigned.
In Maine, the indigent defense system provides lawyers to low-income people who cannot afford to hire a private attorney. Those lawyers handle everything from adult criminal cases to child protective custody cases, juvenile cases, appeals and lock-up hearings.
The rule change is designed to make sure lawyers carry a sustainable caseload, allowing them to provide effective counsel to their clients. However, critics say the rule’s limits may be too low, unnecessarily restricting lawyers from taking on clients they can help. The result is that in the midst of an ongoing lawyer shortage, more people — including those who are currently incarcerated — are forced to wait even longer for representation before their cases can move forward.
There are 302 cases without a lawyer as of Friday, compared with about 30 cases in May when Jim Billings started as executive director for Maine Commission on Indigent Legal Services, which oversees the distribution of lawyers to cases with low-income defendants.
That doesn’t necessarily mean 302 people are awaiting a lawyer, as some people have multiple cases. Around 87 of those cases represent people who are being held in jail.
It’s similar to people stuck in an emergency room without doctors, lawyer Robert Ruffner said. They may be stuck sitting in jail with no bail and no movement for their case until they are assigned an attorney.
“It undermines everything that we’re trying to do in the justice system, delaying any of this stuff,” Ruffner said.
“It exacerbates the problems or exacerbates the injustice, depending on what factual scenario we’re dealing with: A properly charged person that needs help and advice so they can move forward and be a productive member of society … or someone who’s innocent and wrongfully accused or overcharged. Either way, to delay, just makes those issues worse.”
Around 400 lawyers were on the roster for indigent defense cases at the end of 2023 and about 300 of them decided to continue with the organization in 2024, Billings said. Out of those, 180 are willing to take new cases, but that list went down by about 100 lawyers once the new rules took effect.
Some of those lawyers are now eligible for new cases after fixing clerical issues in the system that pushed them over the point limit.
The new rules assign cases points, depending on the severity of the charges. A lawyer working for the commission full time can have 270 points, with the amount decreasing depending on how much work the lawyers do part time.
A lawyer can have up to 67 cases with Class A felony charges, which include murder, some sex offenses and drug trafficking, that are worth four points each, per the rules. A single appeal case is 10 points, while a misdemeanor case is one point.
Lawyers can receive temporary waivers to take on additional cases, which may be granted if they are picking up additional cases for a client they already represent or if they show they can handle more cases, Billings said.
The new rules aren’t explicitly designed to address the lawyer shortage. But they hopefully will, in part by giving lawyers more control over their caseload, which in turn would make more lawyers willing to take some indigent defense cases in addition to private practice, Billings said.
Lawyer Eden Stuart disagrees.
“They’ve capped our cases at these arbitrary numbers and everyone knew this would cause a major crisis,” she said.
The limits don’t take the amount of work throughout a case into consideration, Stuart said. For example, the start of child protective custody cases take a lot of time, but that time demand drastically decreases as the case plays out. A lawyer with more cases farther along in the process could take on additional cases, but the points system doesn’t allow that, she said.
Before the commission took over in 2009, there were about 800 lawyers willing to take cases, she said.
“What they’re doing is saying, ‘Oh, we know there’s not enough of you as it is, so let’s cap the cases.’ As if each of them takes an equal amount of time, which is just a fantasy and completely untrue,” Stuart said.
“I don’t know what they think is going to happen, unless they believe that people are going to stop doing drugs and committing crime, or they’re going to bus attorneys in from other states,” she added.
The new rules aren’t trying to take away work from lawyers, but instead give them a way to control how many cases they have, Billings said.
“What I’ve been trying to say to [lawyers] is that this presents an opportunity for them to make lemonade out of lemons,” he said. “Don’t look at this as a negative, look at this as a positive.”
The ACLU of Maine sued the state in 2022 over the way lawyers are provided to low-income people, saying their constitutional rights were being violated. That lawsuit is still pending.
The state’s first public defender’s office opened in November. The Augusta-based office will also serve low-income clients. The long-term goal is opening public defender’s offices across the state to work alongside the Maine Commission on Indigent Legal Services, Billings said.