March 10, 2013

Court appointed lawyers for defendants scheduled to receive pay raise

Start date and amount still undetermined

By Betty Adams badams@centralmaine.com
Staff Writer

AUGUSTA -- Lawyers are scheduled to get a raise for work representing indigent clients in state court proceedings, but the start date and even the amount remain fuzzy because of state budget woes.

The funding shortage has raised concerns that there won't be enough qualified lawyers to represent indigent defendants, who are those who face jail time and can't afford a lawyer, so they're appointed one who's paid through a state program.

The Commission on Indigent Legal Services, an independent board charged with setting fees for that work, recently approved a $70 per hour fee to begin July 1 and another increase to $75 an hour a year later.

Now, the 465 lawyers registered with the commission receive $50 per hour, a rate set in 1999. In contrast, the hourly rate for work as a federal public defender is $125 an hour.

Just the fact that the commission agreed to begin the rule-making process to set an appropriate rate brought Portland attorney Robert Ruffner back on the roster after a five-month hiatus.

He had previously withdrawn from all his court-appointed cases.

"I fully anticipate that the commission will stick with the rate structure it has adopted no matter what the outcome of the budget," Ruffner said. "Determining a fair and appropriate rate is independent of the budget."

The low hourly pay partially pushed Sarah Churchill out of indigent legal work after 10 years and into the private firm of Nichols & Webb last November.

"Part of the reason for the transition was the pace I was having to go at to make a reasonable living," she said.

While an increase in the rate won't bring her back, it will help those attorneys who remain.

"You could make more money doing fewer cases if there was a reasonable rate," Churchill said. "Therefore the quality would be better because your attention is less divided."

Churchill estimated that an hourly rate for private defense attorneys would be around $225-250 per hour although many attorneys charge a flat fee for certain cases.

A bill in the Legislature proposes to start a $70 an hour wage Oct. 1 and move it to $75 an hour on July 1, 2015.

The governor's budget proposes a $55 an hour rate -- a 10 percent raise -- in the 2014-2015 budget.

Lawyer pay and a number of other provisions in the governor's biennial budget affecting the judicial system will be discussed beginning 1 p.m. March 15 in the Appropriations Committee hearing room in the State House.

"The commission is trying to stem the tide of attorney withdrawal," said David J. Mitchell of Calais, chairman of the Commission on Indigent Legal Services. "A number of good seasoned defense attorneys practicing for decades decided they wouldn't get on the commission rosters. Also a number of good quality defense attorneys chose to take themselves off the rosters because the rate was untouched for so long. Failure to maintain an adequate supply of qualified and zealous attorneys to represent the indigent means indigent persons are getting the short end of the stick."

Rep. Charles R. Priest, D-Brunswick, introduced the bill to fund the $70 hourly rate --albeit effective Oct. 1 -- and the $75 hourly rate effective July 1, 2014.

A hearing on that bill, which carries a two-year tab of $9.4 million to support the increased rate, is set for 1 p.m. March 20 in Room 438 of the State House.

"Were the Legislature not to provide sufficient funds to pay $70, the commission will have to decide whether to decrease the rate from $70 to a rate the allotted funds permit, or it could recognize that, as an independent commission, it could decide the rates were reasonable, in which case we're going to run out of money sooner than we typically do," Mitchell said.

The annual shortfall is projected to arrive this year between mid-April and May 1, according to John Pelletier, executive director of the Maine Commission on Indigent Legal Services. He also warned of the consequences of failing to fund an increased rate.

"I am fearful if we don't accomplish a pay raise, we'll lose a number of lawyers, possibly sufficient to put the system in jeopardy," Pelletier said.

Pelletier said certain areas of the state are already short of rostered attorneys. "A half-dozen seasoned practitioners in Aroostook County who took at least occasional cases don't do it any more, and also some in Ellsworth in Hancock County," he said.

"My understanding is the governor agrees the rate should increase, and he's only been able to find $5 an hour on his own," Ruffner said. "That's a much more helpful position rather than saying $55 is the correct rate."

"He's the first governor to support any increase in a long time, and the lawyers on the roster are all very appreciative," said Charles Soltan, lobbyist for the Maine Association of Criminal Defense Lawyers.

Betty Adams -- 621-5631
badams@centralmaine.com

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