Like ME, NH in crisis without enough lawyers for ongoing cases

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Few Maine attorneys have offered to help reduce the backlog amid high caseloads and lower salaries.

MAINE, USA — Much like Maine, courts in New Hampshire are struggling to find enough lawyers to represent the state’s poor against criminal charges.

Nearly 1,000 cases involving New Hampshire defendants who cannot afford their own attorneys continue because state courts are unable to find public defenders, contract attorneys or private attorneys for the defend, said Sarah Blodgett, executive director of the New Hampshire Judicial Council.

“This is an unprecedented crisis for us,” Blodgett said.

Maine officials have often looked to New Hampshire as a possible model while considering changes to its indigent public defense system.

New Hampshire is the only state that contracts with a private, nonprofit law firm to provide all public defender services, according to the Sixth Amendment Center. Maine, on the other hand, is the only state that does not employ any public defenders, relying instead on numerous independent court-appointed attorneys to defend children and adults accused of crimes who cannot afford to pay. have their own lawyer.

New Hampshire launched a “preservation list” of cases in December 2021 after the state’s public defenders reached their maximum caseload, and contract and private attorney caseloads also reached capacity. Sometimes up to 2,000 cases had not been appointed by a lawyer in the past year. While that number has decreased, it remains at an unacceptably high level, Blodgett said.

The Deputy Chief Clerk of Federal Courts in Maine emailed a plea in late June to attorneys licensed in Maine and New Hampshire to consider accepting cases in New Hampshire. Blodgett said only one Maine attorney had responded by mid-July.

RELATED: Availability of Maine defense attorneys hits all-time low

Maine courts have also seen an increase in open cases, but so far, court-appointed attorneys have been found for every case that requires a state-funded attorney, said Justin Andrus, executive director of the Maine Commission on Indigent Legal Services. , or MCILS.

Maine plans to hire its first five public defenders later this year.

Maine has seen the availability of defense attorneys for new indigent case assignments dwindle — hovering between 200 and 213 attorneys in July. This is an all-time low, surpassing the mark that The Maine Monitor reported earlier that month.

In the past, New Hampshire’s public defenders handled most cases for people who couldn’t afford their own attorneys, except in the event of a dispute. The state’s public defender contract sets a caseload limit of 70 cases per attorney, Blodgett said.

New Hampshire has seen 67 attorneys leave public defender offices in the past four years with a cumulative legal experience of 626.5 years between them, according to data provided by Tracy Scavarelli, director of legal services for the New Hampshire Public Defender.

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The offices hired a few replacements but did not regain as much experience as they lost.

State courts have had to assign more cases to contract attorneys and private attorneys, Blodgett said. Between July 1, 2020 and June 30, 2021, 425 cases were assigned to court-appointed lawyers. This number more than tripled to 1,388 court-appointed cases in the following fiscal year.

Scavarelli said public defender offices plan to eliminate “detention lists” and some county public defender offices have already cleared their backlog.

“We plan to phase out the Admission Reduction Plan in all offices once offices are staffed appropriately (based on experience and not just ‘bodies’) based on average admission and our commitment to maintaining manageable workloads to ensure clients receive the highest level of practice,” Scavarelli wrote in an email to Monitor.

“By temporarily reducing intake, attorneys were able to focus their time on a manageable number of clients and responsibilities, resulting in faster resolutions. This in turn allowed lawyers to be assigned cases from the waiting list,” she added.

MCILS does not impose limits on the number of cases that attorneys can be assigned or accepted by the courts. Instead, lawyers can choose not to receive assignments to certain cases or courts.

Rob Ruffner said an attorney at his Portland law firm had 79 cases for 49 clients. Most were subpoenaed by the court for a period of 3.5 weeks after the attorney’s return from leave. Another lawyer has 104 files and had to stop accepting more a month ago.

“The rate of new assignments is like drinking from a fire hose,” said Ruffner, who stopped taking nearly all court cases in July 2021.

A limited study of Aroostook County defendants earlier this year found some had pending criminal charges and did not have a designated attorney, The Maine Monitor previously reported. All of these defendants have since been appointed as attorneys.

RELATED: Judiciary Committee Votes Unanimously to Fund Public Defender’s Office

A proposal by MCILS staff to implement the state’s first workload limits could further strain Maine’s system. MCILS staff proposed a framework that would assign a point value to each type of case and set an annual maximum number of points an attorney can work.

“I hear people say things like, ‘Justin, if you have workload standards, then people will be maxed out and therefore people won’t have a lawyer,'” Andrus said. “I don’t know if that’s true yet, but the reality is that the solution to this problem isn’t to allow people to maintain constitutionally impermissible workloads, but rather to have more people.”

New Hampshire is hiring attorneys from Vermont, Massachusetts, Maine and the New Hampshire Federal Public Defenders Group to try to reduce the backlog of cases requiring an attorney, Blodgett said.

Blodgett said she finds some attorneys are unwilling to accept the state wage, which is $60 an hour; Maine recently increased the hourly rate for court-appointed work to $80 an hour. Blodgett said New Hampshire is struggling to compete with Maine’s new rate.

The pay gap between Maine and New Hampshire could soon widen even more.

The seven MCILS commissioners said they would likely approve another proposed wage increase — this time to $150 an hour — for court-appointed attorneys and seek approval from the state legislature. to implement the increase next year.

The budget proposed by MCILS staff would cost $62.1 million per year and would include two trial-level public defender offices, an appellate public defender, and a dedicated post-conviction review office. Commissioners will vote in August on whether to support MCILS staff’s recommendations to fund the projects.

Compensation and benefits were repeatedly identified as key areas for bringing new attorneys into Maine’s public defense system as MCILS struggled to attract and retain attorneys.

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“I believe that if I was allowed to pay an appropriate rate to lawyers and if I was allowed to hire an appropriate number of lawyers, at the appropriate salary and with the appropriate support, I would have the people I need to make sure consumers of indigent legal services have the lawyers they need,” Andrus said.

“Am I sure I can get these people today? No. I’m not sure I can recruit these people because the key to attracting and retaining these people is beyond my power,” Andrus added.

State lawmakers have backed new MCILS budget initiatives in recent years, but the projects failed to gain the support of Governor Janet Mills, a Democrat, or make it into her budget proposal. Many MCILS initiatives also went unfunded in the Legislature’s budget despite overwhelming support in a legislative committee.

Whether Maine is moving to a public defender system that’s more like New Hampshire or going another route isn’t the issue, said Bob Cummins, a criminal defense attorney with six decades of experience. He resigned as MCILS commissioner earlier this year because he perceived the inaction of the executive and legislative branches of the Maine government to reform the public defense system.

“It’s not the structure of the system, it’s the fact that there aren’t enough lawyers. Whether in New Hampshire, Massachusetts or anywhere else. Here’s what we have to deal with: People charged with a crime have the right to be represented by competent counsel,” Cummins said. “That’s it. So if we don’t do that and create the system that accomplishes that, then we’re violating the Constitution and that’s what happened in this state.

This story was originally posted by The Maine Monitor. The Maine Monitor is a local journalism product published by the Maine Center for Public Interest Reporting, a nonpartisan, nonprofit civic news organization.

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