Maine officials may ask lawyers handling large caseloads of indigent defendants to stop accepting new assignments from the courts, after finding that 11 lawyers each have more than 301 open cases and half of the open indigent cases are being managed by just 33 lawyers.

The development is the latest sign that Maine’s network of lawyers who represent defendants unable to afford their own counsel are overwhelmed. Maine is unique among states in not employing public defenders. Instead, contracted defense attorneys are overseen by the Maine Commission on Indigent Legal Services, or MCILS. 

“We can’t continue to ask lawyers to take more cases than they responsibly should be taking,” said Ron Schneider, a member of the MCILS commission.

The current crisis is a confluence of two problems. Maine courts have 58% more unresolved felony, misdemeanor and civil violations as of August 2022 compared to three years ago — before the pandemic. There are simultaneously fewer lawyers accepting cases involving a defendant too poor to hire an attorney. 

Among the attorneys still accepting new cases as of Aug. 9, there were 23,655 open cases. Nearly half, 49%, are assigned to just 33 lawyers, a recent analysis by MCILS found. The totals do not account for the open cases of lawyers no longer accepting new cases. 

MCILS is verifying that it isn’t overcounting open cases and asked lawyers this week to close completed cases and “lawyer of the day” arraignment appearances, which caused an approximate 10% drop in open cases, said its executive director, Justin Andrus. Yet, he said the overall trend remains unchanged, “Only a very small subset is actively taking the bulk of our cases.”

The group’s commission gave Andrus permission to ask lawyers to stop accepting new cases or deny appointments to more if the lawyers appeared to have too many. Andrus declined to comment on Wednesday whether that has yet occurred. 

State legislators tasked MCILS with setting caseload standards when it formed the agency in 2010, yet it hasn’t happened. Andrus has presented proposals in recent months on how MCILS could limit cases but commissioners have not finalized a rule.

Gov. Janet Mills, who is campaigning for re-election, may consider “additional potential solutions, such as a recruitment campaign,” to attract more lawyers to work with the state’s indigent defendants, said Lindsay Crete, a spokeswoman for the governor. 

Mills worked as a court-appointed defense attorney and later as the state’s attorney general. In recent years she has been reluctant to increase MCILS’s budget because of government and press reports about lax financial oversight and attorney misconduct. 

Mills signed budgets with more money for MCILS and allocated $4 million of pandemic funds to pay counsel fees as the courts work through the backlog of cases delayed by COVID-19. 

Asked if MCILS has addressed her concerns, Crete said, “The governor appreciates the work the commission has done to improve billing oversight and accountability.”

Republican challenger Paul LePage said Maine needs to move to county-based public defenders similar to the system of district attorneys who prosecute cases. He said it “should be funded by the state to ensure all criminal defendants have adequate access to counsel.”

“Criminal defendants have a constitutional right to counsel. For this reason, I have been a longtime supporter of a public defender system,” LePage wrote in response to questions from The Maine Monitor.

While serving as governor, LePage sent a bill to lawmakers to open an Office of the Public Defender that would have employed and contracted lawyers to defend the state’s indigent. Lawmakers rejected the proposal in March 2016.

Maine is no longer able to ensure that a lawyer will be appointed for every case. Some defendants in Aroostook County spent days without an attorney, The Maine Monitor previously reported. 

Maine Senate President Troy Jackson (D-Allagash) and Judiciary Committee chairwoman Anne Carney (D-Cape Elizabeth) are “deeply concerned” by the shortage of defense attorneys in rural Maine, according to a statement from a Democrat spokeswoman. 

Jackson sponsored a bill to open a legal aid clinic on the Fort Kent campus of the University of Maine. A bipartisan group of lawmakers also secured $966,000 for MCILS to hire five public defenders to work as a traveling “rural public defender unit” to directly serve defendants in areas without enough lawyers. Hiring has not begun. 

Carney said filling the five public defender jobs remains a priority. 

“We know this will not solve all of the problems within the system,” Carney wrote. “Unfortunately, the lack of counsel representing indigent defendants in criminal cases is a persistent problem in a number of other states, all of which have some sort of public defender system. That is not to excuse what is happening in Maine, but rather underscore the widespread problems in this area of law.”

The Monitor reported in July that New Hampshire had a “hold list” of nearly 1,000 cases that didn’t have an assigned lawyer. Public defenders had reached their maximum caseloads and many seasoned defenders had left their jobs, further diminishing the state’s capacity to represent indigent cases.

LePage said lawyers need to be incentivized to move to Maine’s rural counties to practice law.

“Maine does not have a problem with lawyer shortages. We have a problem with too many lawyers in urban areas,” LePage said. “We need to provide incentives for young lawyers to live and work in our rural communities through student loan reform, not student loan cancellation. Our rural communities not only face a shortage of lawyers in our criminal defense system, but legal services generally.”

Josh Tardy, chairman of the commission and a Republican former state lawmaker, said a special session of the state Legislature may be needed to address the MCILS problems. A special session has not been discussed, a Jackson spokeswoman confirmed. 

Carney said the $62.1 million annual budget proposal MCILS plans to submit to Mills and the state Legislature is “thoughtful” and “well-researched.” Work on the state’s two-year budget will begin in December after the election, she said. 

The projects in the MCILS budget will be decided after a public hearing at the Judiciary Committee, she said.

“That’s the right path toward enacting a new system, not a shortcut,” Carney wrote.

Samantha Hogan reports on government accountability and the criminal justice system for The Maine Monitor. Reach her by email with story ideas: samantha@themainemonitor.org.