AUGUSTA, Maine — A state agency charged with providing legal defense to indigent Mainers does not effectively communicate how attorneys should bill for work and cannot effectively monitor billing or performance, according to a watchdog report released Monday.
Maine is the only state without a public defender’s office and set up the Commission for Indigent and Legal Services in 2009 to contract services to a roster of private attorneys. The agency has long been assailed as an underfunded patchwork. That notion was amplified by a report last year from the Sixth Amendment Center finding potential overbilling and conflicts of interest.
The overbilling concerns may have been “overstated” at the time, according to the report from the Legislature’s Office of Program Evaluation and Government Accountability, but it noted that the commission may struggle to identify when it happens. Any solution may revolve around more staffing, though the state faces a projected $1.4 billion shortfall over the next three years.
One major challenge stems from a lack of communication in how attorneys are supposed to bill for their services. The watchdog found rules outlining bill procedures were “sparse” and “not in written form.” Standards may not be communicated to attorneys who may not know what kind of reporting is expected or what expenses are covered, the report found.
That means oversight falls heavily upon the commission’s small staff to ensure the billing accuracy of the billing. Compounding the challenge is “unreliable and potentially misleading” data stemming from inconsistencies in how attorneys bill. Those issues may generate overbilling “false alarms,” but the report said data collection is flawed.
The watchdog agency also found the agency is inconsistent in how it audits its finances, is understaffed and does not use its current staff effectively, ultimately preventing it from fulfilling its purpose. The commission’s executive director, John Pelletier, plans to step down soon.
The report did not delve into whether all of this has led to inadequate defense for the poor. An investigation by the Maine Monitor and ProPublica found several attorneys on the commission’s roster have been disciplined for misconduct and that one client was harassed by her attorney.
But the watchdog noted the commission has no formal mechanism to measure attorney performance. The findings are likely to strengthen ongoing calls for reform and better funding of the commission, including raising fees paid to attorneys from $60 hourly with some exceptions.
Lawmakers, while seemingly frustrated by the report’s findings, struggled with how to best remedy the situation. Assistant Senate Minority Leader Jeff Timberlake, R-Turner, questioned whether the issues raised in the report needed additional staff to deal with what he saw as a “few bad apples” — attorneys unable to bill correctly.
Danielle Fox, director of the watchdog agency, said while the accountability issues with the system could not be fixed by staffing alone, remedies may not be achievable with current staff. The commission would have to determine how many more people are needed, she said.
Rep. Sawin Millett, R-Waterford, who sits on the Legislature’s budget committee, said laying out specific recommendations would be critical to any statute-related changes make it through the next session amid budget concerns.
“We need to be thinking about how we frame a recommendation for the next Legislature and the general public on how to cure these problems, and not just walk away from them,” he said.