Mimesis Law
22 May 2019

From Bad to Worse— LePage Incentivizes Bad Behavior In Maine

Jan. 21, 2016 (Mimesis Law) — Maine is looking at reforming indigent defense:

A proposal by Gov. Paul LePage to create a state public defenders office to represent criminal defendants who can’t afford a lawyer will be aired in a public hearing Thursday at the State House.

Sounds good, doesn’t it? Not so fast, my friend. There’s a problem in terminology here. A public defender’s office is an organization, whether at the federal, state, county or local level, that has full-time staff who do nothing but work on indigent defense cases. Critically, public defenders are paid a salary, not fees; in other words, their compensation remains constant regardless of the number of cases they handle.

What Maine is talking about is a reform to its court-appointed attorney system, where individual attorneys are paid a fee by the government to handle individual cases, not as an employee, but rather as a vendor or contractor:

The bill, sponsored by a bipartisan group of legislators on LePage’s behalf, would replace the current system, which uses state money to hire private lawyers for indigent defense, with a hybrid system in which approved private attorneys would be under contract with the state. Currently, lawyers hired as public defenders aren’t under contract.

The bill also would modify the role of the independent Maine Commission on Indigent Legal Services, established by the Legislature in 2010. The commission now oversees the hiring of private attorneys for indigent defense. Under the bill, the commission would oversee the Office of the Public Defender.

Until 2010, the Judicial Branch oversaw the indigent defense system, assigning cases to private attorneys and authorizing their payments – lawyers representing indigent defendants are paid $60 an hour.

That princely sum of $60 per hour has a cap. While murder cases are set on a case-by-case basis, Class A felonies (like sexual assault on a child) have a maximum payout of $3000. Meaning lawyers are only going to get paid for fifty hours of work. Put another way, a little more than six working days. (There is a provision for fees beyond the cap, but it has to applied for specially.) Nevertheless, even if the compensation is poor, at least the incentives point in the right direction. Broadly speaking, the more work done, the better the paycheck.

The system Maine is considering switching to, though, has the incentives pointing in the other direction. To analogize to the health-care system, it’s like switching from a fee-for-service plan to an HMO. The attorneys contracting with the state would get paid a flat rate, regardless of the amount of work done. In other words, the incentive would be to resolve a case with as little work as possible.

But there’s another problem, even more important than the financial incentives, that plague both systems, though less in the HMO system.

[Rep. Mark] Dion [a co-sponsor of the bill] said criminal defense attorneys in Maine currently learn from one another as they take court-appointed cases. Limiting case appointments to only those who have a contract with the state would prevent others from benefiting from that peer mentoring.

The single most important thing in the development of young attorneys is the ability to get on-the-job training. This is even more critical when it comes to criminal defense, where it isn’t just a client’s money at risk, but their liberty or even their lives. Dion is right to be concerned about the loss of peer mentoring if the majority of indigent defense (and therefore, the majority of criminal defense) is done by a few lawyers in a few firms. Long term, it will make the pool of trained, experienced criminal defense attorneys much more shallow.

The problem still exists under Maine’s current system, because there’s a limit as to how many times you can ask another attorney for free advice, however collegial the local defense bar might be. This is the biggest advantage to public defender system, as opposed to a court appointed attorney system: institutional knowledge. The single biggest part of passing on that institutional knowledge is the training and supervision of young attorneys:

In New Hampshire, public defenders must undergo an intensive five-week training program before being allowed to take on a limited caseload. They must work under a more experienced, mentoring attorney for one year before handling a full caseload.

Not every training program is quite that rigorous, but the key is that someone (other than an appellate or post-conviction court in an IAC lawsuit) is responsible (and paid) for making sure that the lawyer is performing up to standards. Besides supervision, there are colleagues to bounce ideas off of, to cover court cover court appearances, and to share the joy of victory and the agony of defeat. In short (provided there good people in charge) there is an incalculable benefit (which goes double and triple for new lawyers) to practicing criminal defense as part of a team.

So if Maine wants to reform its indigent defense, they should do it the right way. Fund a proper public defender’s office and treat the Sixth Amendment as a serious matter, not a financial opportunity for the lowest bidder.

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