The Capital Judicial Center in Augusta, where the ACLU of Maine filed a class action lawsuit in Kennebec County Superior Court against the Maine Commission on Indigent Legal Services.  Joe Phelan/Kennebec Journal file

The ACLU of Maine has reached a settlement agreement with the Maine Commission on Indigent Legal Services more than a year after suing the agency for providing inadequate legal representation to poor Mainers who are constitutionally entitled to an attorney.

In the proposed settlement, the commission committed to advocating for more resources from the Legislature, updating its regulatory framework for the private attorneys it contracts with and issuing regular reports on its progress.

The agreement notably goes beyond the commission’s direct control, relying heavily on outside cooperation from court officials, state lawmakers and county jails. Much of the settlement depends on the commission “successfully advocating” for increased resources and support.

It also puts a lot of the policy shaping into the ACLU’s hands, outlining a series of recommendations the civil rights organization must make to the commission within 10 to 18 months of the agreement taking effect.

A spokesperson for the Office of the Maine Attorney General, which represented the commission in the case, declined to comment on the proposed settlement. The commission’s director and chair did not respond to inquiries Tuesday afternoon.

The ACLU of Maine isn’t speaking about the agreement yet either, according to a spokesperson who did say the group was “proud to advance this issue in Maine because a person’s freedom should never depend on their wealth.”

The civil rights group sued the commission on behalf of five incarcerated clients in March 2022. The commission is responsible for maintaining and overseeing a list of private, contracted attorneys willing to represent Mainers who can’t afford their own attorneys in criminal and some parental rights cases.

The ACLU said its clients weren’t getting enough time with their attorneys, who weren’t responding to calls, and they didn’t understand the evidence against them or the hearings they attended.

Months after the ACLU filed its complaint in Kennebec County Superior Court, the plaintiffs were awarded class-action status and hundreds of people signed on.

Superior Justice Michaela Murphy still has to approve the agreement. She’ll consider it at a fairness hearing, which has yet to be scheduled, during which all of the plaintiffs will have an opportunity to weigh in on the proposal.

If approved, the state also would have to pay the ACLU $295,000 to cover attorney fees. The ACLU also would have the ability to refile its claims after four years if the terms are not met.

Some advocates for reform who have been following the case closely questioned whether the ambitious agreement will make a dent when much of it depends on things outside the commission’s control.

“There is no consequence to the state of Maine for failing to provide counsel to these defendants who are constitutionally entitled to it,” said Rob Ruffner, a Portland defense attorney who takes court-appointed cases through the Maine Commission on Indigent Legal Services.

Ruffner follows commission issues closely, including its funding requests at the Legislature. He said the initiatives that the state has agreed to fund pale in comparison to what the state actually needs. Ruffner called the agreement a “giant nothingburger.”

“I don’t know why the Legislature and governor will not do what is necessary,” he said. “They’re well aware of the dozens to hundreds of people without counsel. They’re given the option to fund these things and they’re not.”

BUILDING OFF POLITICAL SUCCESS

The lawsuit wasn’t the first time the commission was on notice for constitutional issues. It was the subject of reports from the Sixth Amendment Center in 2019 and a state watchdog agency in 2020.

But in recent years, the commission has launched a number of initiatives seeking to improve its representation of poor Mainers. Following several requests from the commission, the state Legislature agreed to raise what it reimburses attorneys, from $80 an hour to $150 an hour, earlier this year. The commission hopes this will help its efforts to recruit more defense attorneys to its depleted roster.

The state hired its first five public defenders late in 2022 and will hire more, after getting the funding for 10 additional positions in the latest budget. Lawmakers also gave the commission the statutory authority to access county jail lists of pre-trial detainees without attorneys to help it identify who needs a lawyer before they’re too far along in the legal process.

The commission’s obligations under the proposed agreement build off these “political successes,” the document states, and requires both the ACLU and the commission “to continue good-faith efforts to advocate for the funding and development” of additional public defense offices around the state.

But as the settlement notes, it compels neither the Legislature nor the governor to set aside more money for the commission.

“These provisions represent a unique solution to the reality that it is not possible – whether through settlement or judgment – to compel particular appropriations from the state treasury,” the agreement states.

Bob Cummins, who served on the commission until April 2022, said Tuesday afternoon that he doesn’t think the settlement does much because it depends too much on people outside the commission, especially when it comes to approving public defense offices.

“The promise is not, ‘We’ll open these offices and have adequate funding.’ The promise is, ‘We’ll see if we can do it.’ It’s nonsense,” Cummins said Tuesday. “If I were the judge and they handed me this document, I’d hand it back to them and say, ‘OK, boys, now let’s do something real.'”

Commission Chair Joshua Tardy did not respond to requests for comment Tuesday. Jim Billings, who took over the commission as executive director in late May, declined to comment.

REGULATION AND DATA-SHARING

The agreement establishes a time line for when the commission will consider, adapt and enforce standards for the private attorneys who handle a majority of the state’s court-appointed work.

The ACLU will provide the commission with its own recommendations for minimum attorney qualifications, the process for addressing conflicts of interest, complaints and performance standards, according to the agreement. The ACLU also will provide the commission with recommendations to improve its “lawyer of the day” program, where attorneys represent indigent defendants during their initial appearance, before the court can locate a more permanent defense attorney.

An ACLU spokesperson declined to comment on how they will address drafting the rules, at least until the settlement is approved in court.

Donald Alexander, a commission member and one of its named defendants, said Tuesday afternoon that raising the attorney qualifications might exacerbate the commission’s struggle to attract and retain private attorneys.

“(The settlement) puts a lot more procedures and a lot more complexity in an area where we need less procedures and less complexity,” Alexander said. “What we have to do is make the process less bureaucratic.”

As of June, the Maine Commission on Indigent Legal Services had 212 rostered attorneys, with 165 rostered for trial work, according to the commission’s June 20 meeting minutes. Chris Guillory, the commission’s director of training and supervision, told commissioners at their July 17 meeting that 450 full-time attorneys would be needed on the roster to meet the projected demand.

The agreement references rules the commission recently has enacted following directives from state lawmakers. In July, the document notes, the commission voted to adopt caseload standards for its rostered attorneys. Those will take effect in January. Their effect on the number of attorneys taking cases is unclear.

The agreement states that the commission has struggled with enacting effective reforms because it hasn’t been able to access data from the courts.

“Defendants need thorough, detailed, up-to-date data from the Judicial Branch regarding trial court activity to meet their obligations to oversee indigent legal services,” the agreement states.

The commission anticipates that it will be able to access court data on newly filed criminal cases from the Administrative Office of the Courts, the agreement states. The proposal also requires the commission to hire a consultant to help analyze and make effective policies using that data.