An investigation into how Maine pays private attorneys for defending the state’s poor was unanimously approved by the Government Oversight committee on Tuesday as lawmakers grapple with how to separate “actual overbilling” from billing errors uncovered in a series of reports over the last three years.
The latest report, released Tuesday by the Office of Program Evaluation and Government Accountability (OPEGA), identified multiple “risks” with the state’s financial management of its unique public defense system that relies entirely on private attorneys. The issues range from how the state verifies payments to attorneys to how money is collected from poor individuals partially responsible for the cost of their defense.
Within the scope of the new investigation are millions of tax dollars, thousands of defendants and several hundred private attorneys overseen by the Maine Commission on Indigent Legal Services (MCILS).
The unanimous decision to investigate MCILS is a sign that state lawmakers are united in a belief that the situation is urgent, said Sen. Lisa Keim (R-Oxford), the committee member who requested the review at the start of 2019.
“This is urgent and I hope in January the committee might consider if we want to fast-track this,” Keim said.
According to a report released earlier this year by the Sixth Amendment Center, an estimated $2.2 million in state funds may have leaked out of MCILS over the past five years as 33 attorneys potentially over-billed the state for the hours they worked on criminal, juvenile and child protection cases.
The center, hired in 2018 to review the state’s defense system, uncovered multiple systemic problems with Maine’s ability to provide defense and potential over-billing by Maine’s highest paid court-appointed attorneys — including Amy Fairfield, who billed the state $275,612 in fiscal year 2018. At the state’s flat $60-an-hour rate for court-appointed attorneys, that would mean she worked approximately 88 hours a week, excluding a small amount of expenses.
There are no guarantees that the investigation will uncover new findings, but OPEGA’s staff will have access to confidential documents and records shielded from the state’s public records law that previous investigations were not able to review, said OPEGA Director Danielle Fox.
“We could potentially drill down and see if there are potentially explanations for things that are potentially overbilling,” Fox said.
This could include an examination of attorneys’ daily billed hours, which The Maine Monitor reported in November were shielded from public disclosure by the commission’s Executive Director John Pelletier following an internal MCILS investigation into lawyers who billed more than $150,000.
The Maine Monitor’s public records request for a report of daily hours billed by some of the state’s highest-billing attorneys was denied by Pelletier. A request for the billed hours of all of the state’s attorneys is pending with the commission.
Fox told lawmakers she anticipates her office will be able to look at attorney billing just like any other third-party vendor or contractor who does business with the state. There are some legal questions about attorney-client privilege that her office still needs to resolve with the Attorney General’s office, she said.
Determining if some attorneys are purposefully or accidentally overbilling, however, will not fix systemic problems with Maine’s defense system for the state’s poor — including a lack of oversight of court-appointed attorneys and delays in the assignment of attorneys to defendants who cannot pay bail — said Robert Ruffner, a defense attorney in Portland.
“It won’t change in any way the quality of services provided or oversight provided,” said Ruffner, who helped design the commission and has remained a vocal critic of its implementation since 2009.
OPEGA’s investigation will not review standards for attorneys, the quality of representation, attorneys’ rate of pay or whether the state should switch to a public defender system.
“I’m disappointed that there isn’t anyone looking into the continual failures structurally in the system,” Ruffner said.
The independent board of commissioners that oversees MCILS plans on fixing problems within the state agency, which offered only minimal training and oversight of attorneys in the past decade, said new chairman Josh Tardy. He said he welcomed the OPEGA investigation.
Historically, there has been a “lack of willpower” to create accountability measures at the commission level, which is why the state was at the point of investigating the commission’s management and financial oversight, Keim told the members of Government Oversight before the vote on Tuesday.
“We hear her concerns and it’s my goal that the present commission will be responsive,” Tardy said.