SEARSPORT – Two years ago, Aaron Fethke hung his new law degree inside and his shingle outside his office on the main street in this coastal village.

Like a lot of young lawyers before him, the 29-year-old went to the local courthouse, as well as some not so local ones, and added his name to the list of lawyers willing to represent defendants unable to afford attorneys.

“I was drawn to [criminal law] because I like working with people and thinking on my feet,” he said earlier this month. “I’m not in a firm because I like owning my own business.”

Up until this month, he had gotten just about what he had bargained for – almost enough money to meet his monthly expenses, a lot of courtroom experience and the kind of knowledge that can’t be taught in law school. This month, Fethke said that he most likely would have to borrow money to keep his head above water because attorneys who represent indigent defendants will not get paid all of what they are owed by the state.

The state budget crisis and the cuts the judiciary was forced to make to avoid a deficit are making it more difficult for Fethke and others like him to build a legal practice and represent indigent clients.

In order to find enough savings to balance its share of the state budget, the judiciary decided to put off paying vouchers submitted by lawyers in June until the new fiscal year begins July 1. That has brought Fethke’s cash flow almost to a standstill since about 80 percent of his clients are court-appointed and their legal fees are paid by the state.

Since the U.S. Supreme Court’s 1963 decision in Gideon v. Wainwright, indigent defendants facing jail or prison time have been entitled to legal representation. That means lawyers must be paid for by the government, either state or federal, that is bringing the charges. The state also pays attorneys to represent poor parents who are facing the loss of their children because of alleged abuse or neglect.

Defendants in Maine facing jail time may request a court-appointed attorney either at their first appearance before a judge or at an arraignment. They must fill out a financial affidavit declaring their income and assets. If they meet the income requirements, based on the federal poverty guidelines, the judge appoints attorneys to represent them.

Repeat offenders often request a lawyer who has represented them in previous matters. Judges also try to appoint the same attorney to represent defendants with charges pending in District and Superior Courts and-or in more than one county.

Defense attorneys keep track of the amount of time they spend working on the defendants’ cases and submit a voucher once their clients have been sentenced and the case is closed, excluding appeals. Attorneys are paid per client, not for each charge lodged against that defendant.

The judge who oversaw the conclusion of the case must approve the voucher. Judges have the authority to decrease the amounts paid to lawyers if they do not think the fees submitted are reasonable.

The voucher is sent to the Administrative Office of the Courts in Portland. Fethke said that last year it usually took 30 to 45 days to receive payments. That sometimes has taken longer this year.

Maine Supreme Judicial Court Chief Justice Leigh I. Saufley, in her State of the Judiciary speech to the Legislature in February, warned that a crisis in the indigent defense fund was imminent. She said the problem was because of an unexpected increase in the number of criminal cases and child protection cases at the end of 2007 and in January 2008.

In fiscal year ’07, she said, the budget for indigent defense costs totaled nearly $12.2 million. That budget was flat-funded for fiscal years ’08 and ’09. She estimated in February, halfway through the fiscal year, that an increase in criminal cases would cause the cost to reach nearly $13.7 million, an increase of $1.5 million in ’08 alone.

About a month later, Gov. John Baldacci announced a projected $95 million budget deficit and ordered all three branches of government to cut spending and start saving. Saufley said that it would be nearly impossible to find all $1.5 million needed to fill the anticipated gap in the indigent defense budget and make cuts in its own funds because the judiciary already was subsisting on a bare-bones budget.

By not filling open positions, cutting back on entry screening at courthouses around the state, and limiting travel, about $500,000 was saved, according to James “Ted” Glessner, director of the administrative office of the courts. The Legislature “lent” about $450,000 from the judicial branch’s ’09 budget to its ’08 budget at the end of the session in May, he said. Another $160,000 was moved from judiciary’s salary line saved by the hiring freeze to the indigent defense fund. Earlier this week, $96,000 not spent by other branches was moved into the fund, Glessner said Thursday.

But the judiciary budget is still $208,000 short, according to Glessner. That meant that lawyers would get paid for vouchers submitted through today but everything submitted through the end of June would be held and paid in July.

The rise in the number of defendants entitled to representation should have been good news for Fethke. In 2007, 73,039 criminal charges were filed in Maine – 80 percent in District Court and 20 percent in Superior Court, according to the chief justice. About 16 percent of the defendants in District Court in 2007 were provided attorneys by the state, while 52 percent of defendants facing felonies in Superior Court were provided attorneys at state expense.

The average pay per attorney was $254 for a case in District Court and $490 per Superior Court case. That’s a pay scale of $50 per hour, just half the hourly rate of a young lawyer such as Fethke and a quarter of the hourly rate of an experienced criminal defense attorney such as Jeffrey Silverstein of Bangor. Silverstein left the Penobscot County District Attorney’s Office in 1996 to go into private practice.

“To make it as a criminal attorney and a single practitioner,” Silverstein, now a solo practitioner, said earlier this month, “you either have to have a very, very low overhead, high-volume practice, or you have to have paying clients who can make up the difference.”

In addition to the low hourly rate, pay per type of case is capped except in murder cases. As an example, the most a court-appointed defense attorney could be paid in a Class A arson case or a vehicular manslaughter case that went to trial is $2,500. Appeals to the state supreme court pay between $500 and $1,075 depending on the complexity of the case.

It costs twice the caps in staff hours to prepare for complicated jury trials and appeals, Silverstein said.

While attorneys defending indigent clients haven’t had a pay raise since 1998, the poverty rate that is used to determine who qualifies for a court-appointed attorney has gone up every year. The federal court system pays attorneys $100 an hour to represent indigent defendants, but those cases tend to go to experienced criminal attorneys with offices in Bangor, Fethke said.

In an effort to make up for the low pay with high volume, Fethke takes cases outside Waldo County, where his office is located. He travels to courthouses in Knox, Hancock and Penobscot counties. Attorneys are not paid for the mileage except in unusual cases but are paid for their travel time. Eighteen months ago, Fethke took on cases in Kennebec County, he said, but has stopped accepting cases there because of the increase in gas prices.

Born in Eagle Lake, Fethke moved to southern Florida as a teenager and graduated from high school there. He did his undergraduate work at the University of Colorado in Boulder and graduated from the University of Maine Law School in Portland. Fethke serves on the Board of Selectmen in his adopted hometown of Searsport.

If he were not just starting out as a lawyer in a single practice, Fethke said, he would not accept so many court-appointed cases. Fethke hopes that in a relatively short time he’ll be able to transition successfully, as Silverstein and others have done, from indigent defendants to paying clients.

“I shouldn’t be thinking about if I’m going to get paid,” he said. “In the end, the work for the client is what’s important.

jharrison@bangordailynews.net

990-8207

Pay caps on trials and hearings

Class A crimes, excluding murder $2,500

Class B and C against a person $1,875

Class B and C against property $1,250

Class D and E, and habitual offender $625

Class D and E without injury $450

Miscellaneous* $625

Juvenile $450

Child protection hearings $750

Parental rights termination hearings $1,050

Minimum fee per appointment $125

*Such as post-conviction, probation, revocation hearings

SOURCE: Maine Supreme Judicial Court administrative order