AUGUSTA – Attorney Amy Fairfield has devoted most of her professional career to providing legal defense for people who have been charged with a crime and are too poor to hire a lawyer on their own.
Unlike many other states, Maine doesn’t have a public defender’s office. Instead, it hires private attorneys like Fairfield — who pay all their own expenses, office costs and support staff salaries — to take on court-appointed work, billing the state at a rate of $50 per hour, far less than the rates attorneys in private practice usually bill.
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But Fairfield and other attorneys who do the same work are facing a fiscal crisis. The state’s budget to pay those lawyers for their constitutionally required work will be wiped out by mid-April, long before the fiscal year ends on June 30, leaving the lawyers to do the state’s work unpaid.
Going 2½ to 3 months without income to pay her staff and bills would be “catastrophic,” Fairfield said. Her firm, Fairfield & Associates, has nine attorneys, two law offices, in Portland and Lyman, and a total of 13 employees including support staff.
“Almost all of our practice is defense of indigent legal defendants. It’s something we love, we’re good at it and we don’t want to give it up,” she said. “Everything associated with running an office comes out of that money.”
The House and Senate joint Committee on Judiciary last month unanimously recommended funding the estimated $1.8 million shortfall to pay for the court-appointed work, and the joint Committee on Appropriations and Financial Affairs is slated to decide this week whether to fund it in a supplemental budget through the end of the fiscal year.
The co-chairwoman of the Appropriations Committee, Sen. Dawn Hill, D-York, said the committee wouldn’t decide for sure until later this week.
“I can’t say where we are at this point,” Hill said. “Maybe we can find a smaller number.”
The same situation came up last year when the Maine Commission on Indigent Legal Services, which runs the state program for legal defense of the poor, was faced with a budget shortfall of about $1.6 million.
In fiscal year 2012, the commission had a budget of $9.8 million, not enough to meet its final expenses of nearly $11.5 million. The Legislature partially funded the shortfall with a $750,000 supplemental budget, leaving the governor to use his emergency powers to allocate the remainder.
The situation has led to some attorneys getting out of the program altogether.
In the budget crisis last spring, attorney Clifford Strike’s firm, Strike, Goodwin, & O’Brien, decided it couldn’t survive another season without getting paid.
“A year ago when we went through this, I had six attorneys in the firm and a total of 12 people. And now there are three of us,” Strike said.
Strike said he called a meeting last spring of the entire staff and told them they would have to either take substantial pay cuts or go their separate ways. Many of the firm’s top lawyers left, he said.
Strike said the $50-per-hour rate, which was set in 1999, is not enough to fund a small law firm that handles high-profile cases.
“We have to pay our own health insurance, our own malpractice insurance, our own rent, our own workman’s compensation, etc., etc. And we have to pay for our own paper clips, all at a rate that was set 14 years ago,” Strike said. “When you’re paying attorneys so little, you are encouraging ineffective assistance of counsel.”
Strike declined to disclose exact financial numbers for his firm, but said the money the firm made last year from court-appointed work was about $5,000 a month less than it cost to keep the office running after paying salaries, insurance, rent and other bills.
He said the court-appointed work “kept the lights on” and that he had to rely on private clients and federal court work to keep the firm afloat.
“Anybody who thinks attorneys are getting rich off the court-appointed program, they have their head in the sand,” he said. “They’re ignorant. The average court-appointed attorney makes less than the guy driving the snowplow for the state, less than your plumber, less than your hairdresser.”
Fairfield said that as a small-business owner, she doesn’t have a cushion of money to keep the office running without a steady income.
“We work hard. We pay our taxes,” Fairfield said. “The idea of not being able to be paid for the work we do, it has the ability to absolutely cripple a business.”
The shortfall this year comes as no surprise, said attorney Robert Ruffner.
Although the commission’s expenses in fiscal 2012 were $11.5 million, the Legislature allocated just over $10 million for 2013, although there has been an increase in child protective services in the last year, he said.
Ruffner is director of the Maine Indigent Defense Center, a volunteer group of private attorneys whose mission is “to ensure quality representation for indigent defendants in the criminal courts of Maine.”
“My job is to try to get loud,” Ruffner said, “to be the squeaky wheel to point out that we’re not quite cutting it.”
The Maine Commission on Indigent Legal Services has been underfunded each year since it began overseeing the program in fiscal 2011. It also had been underfunded each year before that, when the service was run by the Maine Judicial Branch. The Legislature struggles in the third quarter of every fiscal year to decide what to do when the money runs out, Ruffner said.
The Maine Commission of Indigent Legal Services is a five-member commission, appointed by the governor and confirmed by the Senate. It has an executive director, deputy director, an accountant and six financial screeners who recommend whether a person can or cannot afford an attorney on their own.
The commission pays private attorneys to represent indigent clients in juvenile criminal cases, child custody cases, felony criminal cases and misdemeanor criminal cases in which a sentence could include jail time.
One commissioner, attorney Steven Carey, said he is trying to keep the conversation focused on the current fiscal year rather than on what the commission might receive in the upcoming budget talks for fiscal years 2014 and 2015.
“We need to get ourselves through the fiscal year to make sure attorneys get paid for the work they already did,” Carey said.
Carey said he estimates the commission has enough money left to keep paying vouchers submitted by attorneys for work on completed cases until about mid-April.
“I believe that most of the members of Appropriations I’ve spoken to understand that this is a constitutionally required system,” Carey said. “My fear is that if Appropriations does not fund us, some of our attorneys will go 10 weeks without getting paid. They will not be able to keep the doors open if that happens.”
The co-chairwoman of the Judiciary Committee, Sen. Linda Valentino, D-York, sent a letter to the Appropriations Committee urging them to fill the shortfall, saying that otherwise, “the State will not be able to proceed with criminal prosecutions, nor will it be able to protect children who are subject to serious abuse or neglect.”
Valentino said the state is legally responsible for paying these costs and the result of not paying right away is “clogging” the legal system.
“The state has been in this situation before, and the attorneys who had been working, they had to wait until the beginning of a new fiscal year to get paid,” Valentino said.
The budget shortfall talks this year foreshadow a bigger struggle coming next year when the rates attorneys are paid by the state are slated to go up to $70 per hour. In fiscal 2015, they are slated to go up again to $75 per hour.
Legislators are expected to begin those talks in the second half of February after the supplemental budgeting process concludes.
Staff Writer Scott Dolan can be contacted at 791-6304 or at:
sdolan@mainetoday.com
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