Lawyers for Maine's Poor Face Months With No Pay as State Fund Dries Up

May 16, 2017

It's become a chronic problem in Maine:  The state has failed to provide enough resources for court-appointed attorneys who represent low income clients.  This year, the funding has dried up two months early.

That means lawyers who've been selected to handle criminal defense, juvenile, child custody and civil commitment cases won't get paid until the new fiscal year begins July 1.  Some of those lawyers are thinking about the best way to respond.

This month, defense attorney Jim Howaniec of Lewiston is expecting to undertake what could be a three-week-long trial involving a Somali couple charged with welfare fraud.  The state has designated 62 witnesses in the case.  The defense has 24.  And, Howaniec says, there are 264 exhibits - thousands of pages of documents.  So, it's going to be complicated.  And expensive.

"This is a case that requires hundreds of hours of work," Howaniec says. "The state had to fly in five interpreters from Ohio and Minnesota at an enormous expense.  It's going to cost well over $100,000 to litigate a case in which the state is alleging $75,000 worth of welfare fraud.  And we're not getting paid for it, at least not until after July 1."

By "we" Howaniec means the private court-appointed attorneys hired to represent the two defendants - they won't get paid for two months.  But the judge, the prosecutor, the clerk and all the other courtroom staff will all be paid on time. 

Across Maine dozens of lawyers for low-income clients are in the same boat.  And, for many, indigent work is a big part of their practice.

"It's creating a lot of frustration, to the point where people are actually talking about engaging in some sort of work stoppage, some sort of strike," says Houlton attorney Jeff Pickering. "This is the longest stretch they've asked us to do and it just seems like it's....pretty disrespectful for the work we do."

Pickering says he doesn't understand why the Maine Legislature doesn't adequately fund the Maine Commission on Indigent Legal Services.  The commission contracts with, and oversees, attorneys who provide representation for those who can't afford it.

The budget for the current fiscal year is almost $3 million less than it was last year.  And as the number of indigent clients continues to grow, Pickering says the situation is not only unfair, it's untenable.

"We have a choice of either doing poor service for our clients by not showing up for court, which is one of the things we're considering, or just working for free," he says. "We shouldn't have to be facing that choice."

Though he won't be paid for two months, Howaniec continues to work on other court-appointed cases.  On Saturday morning he stopped by the Androscoggin County Jail to visit with a client who's facing an upcoming sentencing for aggravated assault and domestic violence.

"Hey, my man, how you doing?" he said. 

"Just as depressed as ever but, ah, maintaining," the client responded.

In Maine, court-appointed lawyers are paid $60 an hour.  It's not the most lucrative way to practice law.  But Howaniec says it's rewarding and essential.  In the landmark 1963 case, Gideon v. Wainwright, the U.S. Supreme Court ruled that states are required to provide counsel to indigent criminal defendants under the Sixth Amendment.  Portland attorney Tina Nadeau says making that clear to lawmakers has proved difficult. 

"I mean people have spoken to the Legislature," Nadeau says. "They've talked to their representatives and it seems like this problem isn't going away.  It seems like it's getting worse."

For his part, Gov. Paul LePage has criticized the Commission on Indigent Legal Services and its need for increased funding, calling it a "work program" for lawyers.  Twice he's proposed replacing the commission with an Office of the Public Defender that critics said was insufficient and that lawmakers rejected. 

Nadeau says she fears indigent funding has become a political issue.  And Howaniec worries about what that means for his clients.

"I think it may be a over broad to call it a 'crisis,' " Howaniec says, "but certainly the system is really fraying and I'm really concerned about the Sixth Amendment rights of poor people."

In other states,  such as Missouri and Louisiana,  lawsuits have been brought over inadequate public defender funding.  Howaniec says he hopes that can be avoided here.  Calls to the Democratic and Republican co-chairs of the Legislature's Judiciary Committee were not returned by airtime.