Two lawyers nominated to oversee the legal defense for low-income Mainers are among the attorneys who broke state rules and were not eligible for some cases they were appointed to work on, a review of state records shows.
Meegan Burbank of Jefferson and Matthew Morgan of Topsham were selected by Gov. Janet Mills to serve on the Maine Commission on Indigent Legal Services, or MCILS, which is responsible for supervising and training court-appointed counsel for Maine’s poor. Mills said Tuesday that she will continue to support the nominees, who will become non-voting members of the commission if they are approved by the Senate.
“The governor is working with the Legislature and the commission’s new leadership to strengthen MCILS, and she is confident that Burbank’s and Morgan’s depth of experience in criminal defense proceedings will contribute to – not detract from – efforts to ensure the commission is meeting its mission of providing high-quality legal representation,” said Press Secretary Lindsay Crete, after being informed by The Maine Monitor that the lawyers had broken state rules to work on certain cases.
Scores of attorneys in Maine represented clients when they did not have the training or experience required by state rules, an investigation by The Maine Monitor and ProPublica found in February. At least 2,000 case assignments for serious criminal matters were handed off by the courts to ineligible lawyers over a period of five years.
MCILS, judges, clerks and individual lawyers share responsibility to ensure a lawyer is qualified. MCILS leadership routinely did not provide court officials with enough information to determine whether attorneys were eligible for certain cases, clerks said. MCILS leaders also did not stop attorneys from working on these cases even though staff and internal systems alerted them that the lawyers may not have been qualified. Some lawyers claimed they did not know they had broken the rules.
“The reality is that at the time of these (court) appointments, MCILS was not strictly following the rules,” said Justin Andrus, the interim executive director of MCILS since January.
State records show Burbank worked on a handful of violent felonies as well as a drunk driving and domestic violence case that she was not approved by MCILS to work on between 2018 and 2019. Burbank declined to comment on specific cases, and turned down a reporter’s offer to be sent the docket numbers of cases she worked on while not eligible.
“I wouldn’t want to reveal information about why I took a case or why I didn’t take a case,” she said.
A review of state records showed no disciplinary actions against Burbank and no cases overturned as a result of ineffective representation.
The Maine State Bar Association recommended the governor appoint Burbank to the commission and continues to support her nomination, said its president, Kelly McDonald. The Maine Rules of Professional Conduct require every lawyer to evaluate whether they are competent for a case and the bar association has “no doubt” that Burbank understands and fulfills that responsibility, he said.
“Attorney Burbank has a strong reputation in the legal community and is known for providing quality service to her clients. Her experience and expertise more than qualify her to serve on the MCILS in the position for which the MSBA recommended her,” McDonald said. “The assumption that the MCILS roster is a proxy for competence is false.”
Morgan, a partner at McKee Law in Augusta, also worked on nearly a dozen violent felonies and sex offense cases that he was not eligible for between 2015 and 2017, according to records reviewed by The Maine Monitor. He later was approved for the commission’s “Serious Violent Felony” panel.
Morgan said it was the first time he heard that there was an issue with his court appointments. And as far as he knew, he was allowed to work on the cases the court assigned and commission approved, Morgan wrote in a statement.
“Let me be crystal clear: The courts and commission have never appointed me to a case I was unqualified to handle and I have always provided excellent representation to all of my clients,” Morgan said.
A review of state records showed no disciplinary actions against Morgan and no cases overturned as a result of ineffective representation.
The Maine Association of Criminal Defense Lawyers, or MACDL, recommended Morgan for the commission. He serves as secretary of the association’s board.
“Matthew Morgan has our unwavering support,” MACDL’s executive director, Tina Nadeau, wrote in a statement to The Maine Monitor. “Attorney Morgan is highly qualified and exceptional — his work ethic and effectiveness have been observed by the judges who have appointed him to represent indigent clients and who have seen his performance in all types of cases.”
To be eligible for most serious case types, attorneys need to have practiced law for between one to five years and completed a certain number of trials and training courses, according to the commission’s rules. The lawyers must apply and be placed on a panel for each specialized case type. The executive director has the power to waive some requirements.
A review of emails from the former MCILS executive director, John Pelletier, did not reveal any obvious waivers or agreements to allow either lawyer to work on the cases, Andrus said. Pelletier resigned late last year. The two directors spoke, and Pelletier indicated he believed Morgan would be supervised by the senior partner at his firm, Walter McKee, Andrus said.
McKee said he and Morgan routinely discuss cases, including the ones he is appointed to by the court.
“Any suggestion that Matt was not qualified to handle these cases is flatly, factually, and just totally untrue,” McKee said.
But Commissioner Bob Cummins said the situation highlights a substantial problem with how MCILS currently determines whether an attorney is qualified and eligible for cases. It’s “clearly a problem” if the rules are broken, Cummins said. But it’s also an issue that a qualified lawyer can be in violation of the rules because they’re not on a list.
“This circumstance underscores the defects in the rules and standards that have essentially been arbitrarily established,” Cummins said.
Andrus did not review the details of the cases The Maine Monitor brought to his attention. A review of attorneys’ past performance was not warranted at this time, he said. Off-panel appointments used to be “endemic” to the agency and have since stopped, Andrus said.
“Burbank and Morgan are two of the best attorneys I’ve ever had cases against. I’ve had experience as opposing counsel against each of them and I believe that either one of them would have performed an exemplary job in any case they ever took,” Andrus said.
Burbank practices law in Boothbay Harbor. She serves as president of the Lincoln County Bar Association and routinely accepts pro bono work through the Maine Volunteer Lawyers Project, she said during her confirmation hearing. She also ran a campaign for probate judge in Lincoln County as an unenrolled candidate in 2020 but lost to incumbent William Avantaggio, The Lincoln County News reported.
Burbank temporarily stopped accepting criminal cases last year after receiving an influx of assignments due to multiple attorneys dropping off MCILS’s court appointment list. She intends to start accepting new appointments to adult criminal cases in May, she said.
“It is dangerous to dabble in any type of law,” Burbank told lawmakers during her confirmation hearing on April 8. “We always like to have attorneys who are committed to knowing the law in the areas in which they practice. As attorneys we know what we don’t do, and when someone comes to us with the type of case that we don’t do, we find an appropriate attorney to send them to.”
If confirmed, Burbank and Morgan would fill two of the five vacant or expired seats on the commission.
Mills also nominated retired Supreme Court Justice Donald G. Alexander, Maine’s longest-serving judge with more than 40 years on the bench. Alexander would replace Sarah Churchill, who left the commission in January to accept a judgeship in the District Court. For the past several months, Alexander has participated in the commission’s financial oversight subcommittee.
Mills recommended Ron Schneider remain on the commission. Schneider served as the original chair of the commission in 2010 and was appointed by Mills to a one-year term in 2019. During his time on the commission, Schneider supported recommendations to switch to public defender offices and for stricter enforcement of the commission’s rules. Cummins’ term has also expired but he can serve until the seat is filled.
Senators may vote to confirm the nominees at their next in-person session, scheduled for April 28.