Members stunned to learn existing rules for protective custody cases not enforced for nearly a decade

Maine’s public defense agency acknowledges it didn’t enforce rules on attorney qualifications

Thu, 12/31/2020 - 11:00am

    Maine did not enforce rules mandating the minimum level of experience attorneys must have before representing parents at risk of losing custody of their children, the state’s public defense agency admitted on Monday, Dec. 21.

    Discussion of a proposal that would make sweeping changes to attorney qualifications took a sudden turn when deputy director Eleanor Maciag announced the protective custody section of the rules had not yet been implemented and were not being enforced, despite being in place since 2011. Revisions are currently being considered and expected to be voted on in January.

    The news visibly upset the eight-member commission that oversees the Maine Commission on Indigent Legal Services, or MCILS, the state agency tasked with ensuring attorneys are appointed to people too poor to hire their own.

    “The rules were put in place not to constrain lawyers but in an effort to ensure that lawyers were qualified. They were also put in place out of respect for the difficulty of the work,” said Commissioner Ron Schneider. “It’s wrong to assume that anybody can do (protective custody cases).”

    Schneider served as chair of the commission in 2010 and helped write many of its founding documents, including rules for specialized panels, which set higher standards for training and experience for lawyers to work on homicide, sex offense, felony and protective custody cases.

    The commission has no clear way to asses the quality of the work by attorneys who may have been wrongly assigned to protective custody cases, which often involve child abuse and are already shrouded from public scrutiny by strict confidentiality rules. It is unclear how many of these cases may have been assigned without regard for the rules.

    Schneider said it was inappropriate for MCILS to have not implemented the rule nine years later. But the commission also does not have the staffing or money to ensure lawyers meet its qualifications, he said.

    The agency’s former executive director, John Pelletier, did not enforce or create an application to join the protective custody list, Maciag said. Pelletier resigned in November and departed on Dec. 11 amid mounting criticism of his leadership. He was the first and only executive director of MCILS.

    Government reports critical of Pelletier’s oversight of attorneys and press reports of misconduct by appointed attorneys have raised questions about Maine’s unique public defense system that relies entirely on private lawyers to represent the poor.

    “Rostering of attorneys by MCILS for protective custody cases implies that those attorneys possess those core competencies. If that is not the case, MCILS rostering practices must be addressed to ensure adequate qualifications,” said Amy Quinlan, communications director for the judicial branch. “If the court perceives an inadequacy in counsel’s ability to handle a case, the court would not hesitate to raise the issue and bring it to MCILS’ attention. Counsel also has an obligation to take only those cases that they are qualified to handle.”

    The courts are currently reviewing past appointments made by MCILS. Some areas of the state have only a limited number of attorneys working on protective custody cases, and the courts see it as a vitally important service, Quinlan said.

    Looming deadlines

    The announcement has thrown an unexpected twist into an already difficult rulemaking process. 

    The commission is on a tight deadline to vote on the set of rules before Jan. 8 when it must be handed off to the Legislature for final approval. 

    If passed, the rules would expand the commission’s oversight of attorney finances by mandating attorneys comply with audits, set new reporting requirements for misconduct and give the executive director broader authority to remove attorneys. 

    It is critical the commissioners finish on time and avoid making the same blunder they did in early 2020.

    The commission learned shortly after proposing its first draft of the rules in February 2020 that it had missed the legislative deadline by more than five weeks, The Maine Monitor reported at the time. 

    The mistake derailed a package of reforms that the Judiciary Committee had expected to introduce to fix problems identified nearly a year earlier by the criminal justice nonprofit Sixth Amendment Center. The center detailed in an April 2019 report that criminal cases in Maine were advancing at the expense of  defendants’ constitutional rights. 

    Many of the report’s recommendations have not been implemented 20 months later.

    Despite meeting virtually at least monthly, the commissioners did not revisit the proposed rule changes until September. Now it has two weeks to finalize and vote on the proposed rule changes. Its next meeting is scheduled for Jan. 4 at 1 p.m.

    The commission is required by law to consider every comment and vote to accept, reject or partially incorporate the proposed change. If the proposal is substantially changed during the comment period, then the review and comment process must start over.

    Grandfathered into a changing system

    The full package of rule changes was debated at a public hearing earlier Monday, Dec. 21.

    If passed, the new rules will place restrictions on the number of attorneys eligible for court-appointments. The executive director will have the authority to limit and deny new applicants if a “sufficient” number of attorneys are working in a region — though it is not clear how that determination will be made. New lawyers also will not be allowed to accept cases until they have been assigned a mentor. 

    Attorneys already contracted with MCILS will be grandfathered in under the old rules during the first year after the rules are enacted.

    Neil Prendergast, a defense lawyer in Aroostook County, said the new mentoring requirements could be a considerable burden for Maine’s rural counties that have few lawyers. It also could deter new lawyers from moving to rural areas to begin their practices, he said.

    The goal of the rule change is not to make it more onerous for lawyers to accept court appointments, but to enhance representation statewide for defendants, said Portland lawyer Tina Nadeau.

    “It’s not to make things harder for attorneys for the sake of making it harder,” she said. “It’s to improve the quality of representation provided to clients whether they are in Caribou, Maine; Portland, Maine; Rumford or Calais. Everyone deserves quality representation.”

    Nadeau is the executive director of the Maine Association of Criminal Defense Lawyers but was not speaking on behalf of the organization on Monday.

    Applicants will be required to be in good standing with the Board of Overseers of the Bar — the state’s attorney oversight agency — and disclose criminal charges or professional misconduct to MCILS earlier in the complaint process. Lawyers will not be allowed to accept court-appointed cases during any pending criminal or disciple proceedings. 

    An earlier version of the rules prohibited attorneys from having romantic and sexual contact with clients, but that was cut from the final draft. A court-appointed lawyer working with MCILS in 2016 repeatedly solicited a defendant for sex while representing her on multiple felony charges, an investigation published in October by The Maine Monitor and ProPublica showed.

    Bob LeBrasseur, a defense lawyer and non-voting member of the commission who led the rewrite, said in response to questions about the cut that “this was not a major substantive change and was in the wrong section of the rules.” It is expected to be added back into another section of the commission’s standards, he said.

    Twenty-six percent of attorneys who received the most serious disciplinary sanctions — disbarment, suspension and reprimands — from the board of overseers in the past decade were contracted by MCILS, an investigation by The Maine Monitor and ProPublica also found. That included a lawyer whose license to practice law was suspended after multiple drunk driving convictions.

    Lawyers convicted of drunk driving or drug charges will now be prohibited from accepting new cases until they have completed a substance abuse evaluation and any recommended counseling, if the new rules pass. 

    For attorneys who solely do court-appointed cases, this could allow MCILS to remove a person from the workforce, said Cory McKenna, a Portland lawyer. He pushed back on the punitive standard.

    Rep. Jeffrey Evangelos (I-Friendship) said the difference is that the state is footing the bill.

    “We’re talking about the expenditure of people’s money here — public money,” Evangelos said. “You have a right to say we don’t want to subsidize that person’s career. We’re not saying they can’t go out and practice law privately, we’re just saying that the taxpayers aren’t going to subsidize poor conduct.”

    However, the new rules may mask a bigger problem, which is the underfunding of public defense in Maine, said defense attorney Robert Ruffner. The state has not provided the commission enough money or staff to perform oversight of attorneys first-hand, he said.

    There is unlikely to be funding beyond the commission’s expected budget of $18.3 million again in 2022 and 2023.

    Gov. Janet Mills, a Democrat, signaled that she is unwilling to allocate more money to MCILS without more accountability. The state budget office notified the commission that major initiatives that would have opened public defender offices, increased staff and increased lawyer pay were not included in the governor’s upcoming two-year budget, The Maine Monitor reported on Sunday.

    Nadeau said she supported the rule changes, but that the commission should not approve them unless there is funding to support the training, mentoring and supervision it would demand. 

    “Reading the tea leaves right now, it doesn’t seem like it’s a priority of this administration to actually fund indigent defense in a way that will actually improve the quality of representation for clients and that was the goal of looking at these rules,” Nadeau said.

    Written comments may be submitted to Deputy Director Ellie Maciag Esq., MCILS Rule-Making Liaison, 154 State House Station, ME 04333, Tel. (207) 287-3258, Fax (207) 287-3293, Proposed changes to Chapter 2 and Chapter 3 are available on the Maine Commission on Indigent Legal Services’ website. The public comment period closes on Dec. 31 at 5 p.m.