Rule 44. Right to and Assignment of Counsel

(a) Assignment of Counsel.

(1) Before Verdict . If the defendant in a proceeding in which the crime charged is murder or a Class A, Class B, or Class C crime appears in any court without counsel, the court shall advise the defendant of the defendant's right to counsel and assign counsel to represent the defendant at every stage of the proceeding unless the defendant elects to proceed without counsel. If the defendant is without sufficient means to employ counsel, the court shall make an initial assignment of counsel. Assigned counsel must be designated by the Maine Commission on Indigent Legal Services as eligible to receive assignments for the type of case to which counsel is assigned. The Maine Commission on Indigent Legal Service will, pursuant to procedures established by the Commission, accept the initial assignment made by the court or substitute other counsel for counsel assigned by the court. Counsel initially assigned by the court shall remain counsel of record unless the Commission does not accept the assignment and provides notice of substitution of counsel and counsel files a notice of withdrawal pursuant to Rule 44B, or counsel is otherwise granted leave to withdraw pursuant to Rule 44B. If a defendant in a proceeding in which the crime charged is a Class D or Class E crime appears without counsel, the court shall advise the defendant of the defendant's right to be represented by counsel at every stage of the proceeding unless the defendant elects to proceed without counsel. If the defendant is without sufficient means to employ counsel, the court shall make an initial assignment of counsel, unless the court concludes that in the event of conviction a sentence of imprisonment will not be imposed. Assigned counsel must be designated by the Maine Commission on Indigent Legal Services as eligible to receive assignments for the type of case to which counsel is assigned. The Maine Commission on Indigent Legal Service will, pursuant to procedures established by the Commission, accept the initial assignment made by the court or substitute other counsel for counsel assigned by the court. Counsel initially assigned by the court shall remain counsel of record unless the Commission does not accept the assignment and provides notice of substitution of counsel and counsel files a notice of withdrawal pursuant to Rule 44B, or counsel is otherwise granted leave to withdraw pursuant to Rule 44B.

(2) On Appeal . Counsel assigned to a case in the Unified Criminal Docket shall continue to represent the defendant unless relieved by order of the trial court or the Law Court. The court may assign counsel to a defendant determined indigent after verdict or finding pursuant to Rule 44A.

(b) Determination of Indigency. The court shall determine whether a defendant has sufficient means with which to employ counsel and in making such determination may examine the defendant under oath concerning the defendant's financial resources. A defendant does not have sufficient means with which to employ counsel if the defendant's lack of resources effectively prevents the defendant from retaining the services of competent counsel. In making its determination the court shall consider the following factors: the defendant's income, the defendant's credit standing, the availability and convertibility of any assets owned by the defendant, the living expenses of the defendant and the defendant's dependents, the defendant's outstanding obligations, the financial resources of the defendant's parents if the defendant is an unemancipated minor residing with his or her parents, and the cost of retaining the services of competent counsel. If the court finds that the defendant has sufficient means with which to bear a portion of the expense of the defendant's defense, it shall assign counsel to represent the defendant in accordance with subdivision (a)(1), above, but may condition its order on the defendant's paying to the court a specified portion of the counsel fees and costs of defense. When such a conditional order is issued, the court shall enter an order stating its findings.

(c) Compensation of Counsel. Counsel appointed to represent a defendant shall receive compensation for services performed and expenses incurred as assigned counsel pursuant to rates and standards established by the Maine Commission on Indigent Legal Services pursuant to 4 M.R.S. § 1804(2) and (3). Assigned counsel shall under no circumstances accept from the defendant or from anyone else on the defendant's behalf any compensation for services or costs of defense, except pursuant to court order.

(d) Appearance of defense counsel. An order assigning counsel to represent a defendant pursuant to subdivision (a) shall constitute a notice of appearance by that attorney. Counsel who represents a defendant in a criminal proceeding other than on a court-appointed basis shall file a written appearance with the clerk of the Unified Criminal Docket before or at the time of counsel's first court appearance or filing of papers on behalf of the client. The entry of appearance must include the attorney's name, firm name, address, telephone number, facsimile number, email address, and bar number.

(e) Bar Registration Number. All attorneys appearing in the Unified Criminal Docket shall include their Maine Bar Registration Numbers on all documents filed with the court.

Committee Notes

Advisory Note – April 2017 Rule 44, subdivision (d) is adopted to identify the circumstances requiring defense counsel to file a written notice of appearance with the clerk of the Unified Criminal Docket, when that notice is required to be filed, and what information that notice must contain.

Committee Advisory Note [December 2014] The Rule parallels the content of Rule 44 of the Maine Rules of Criminal Procedure but differs in the following respects. First, in subsection (a)(2) the words "Counsel assigned to a case in the Unified Criminal Docket" replace the words "Assigned counsel who represents a defendant in the District Court, the Superior Court, or a court with a unified criminal docket." Second, in subsection (a)(2) "Law Court" replaces "appellate court" because the Superior Court no longer functions as an intermediate appellate court in the new unified process. The Law Court is now the sole appellate court. See Committee Advisory Note [December 2014] to M.R.U. Crim. P. 36. Third, subdivision (d) is not carried forward into the new Rule because the transitional period is over. Fourth, in subdivision (e) "Unified Criminal Docket" replaces the reference to "court."

[Advisory Notes to former Maine Rules of Criminal Procedure]

Advisory Committee Note—1967 [M.R. Crim. P. 44.] 15 M.R.S. § 810 (1964), as amended, (Supp. 1965) provides: "The Superior or District Court may in any criminal case appoint counsel when it appears to the court that the accused has not sufficient means to employ counsel." Maine Rule of Criminal Procedure 44 requires both the Superior Court and the District Court to appoint counsel in felony cases when a defendant does not have sufficient means to employ counsel. There was no provision in either the Maine Rules of Criminal Procedure or the Maine District Court Criminal Rules relative to the appointment of counsel in misdemeanor cases. There is still some question as to the constitutional right of a defendant to appointment of counsel in a misdemeanor case. In Harvey v. Mississippi, 340 F.2d 263 (5th Cir. 1965), it was held that a defendant charged with a minor offense which could be punished by a $500 fine and 90 days in jail, was entitled to counsel. A California court has held that a defendant is entitled to counsel when charged with the offense of driving with a revoked license. In re Johnson, 62 Cal. 2d 325, 42 Cal. Rptr. 228, 398 P.2d 420 (1965), The New York Court of Appeals has held that a defendant charged with petty larceny is entitled to appointed counsel. People v. Witenski, 15 N.Y.2d 392, 259 N.Y.S.2d 413, 207 N.E.2d 358 (1965). It is not clear that the holding in Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799, 93 A.L.R.2d 733, on remand, Fla. Sup., 153 So. 2d 299 (1963), requires appointment of counsel in all criminal cases. [Compare, State of Connecticut v. DeJoseph, 3 Conn. Cir. 624, 222 A.2d 752, cert. denied, 385 U.S. 982, 87 S. Ct. 526, 17 L. Ed. 2d 443 (1966) with Arbo v. Hegstrom, 261 F. Supp. 397 (D.C. D. Conn. 1966). See also People v. Mallory, 378 Mich. 538, 147 N.W.2d 66 (1967); Comment, Court Appointed Counsel for Indigent Misdemeanants, 6 Ariz.L.Rev, 280 (1965); Comment, The Indigent Defendant's Right to Counsel in Misdemeanor Cases, 19 Sw.L.J. 593 (1965)]. However, because of the Maine statute and because of the apparent trend of recent cases the rules have been amended to recognize the power of the court to appoint counsel in misdemeanor cases, leaving to the discretion of the court whether the power should be exercised. It is to be anticipated that the exercise of discretion would be dependent upon the seriousness of the misdemeanor offense involved.

Advisory Committee Note—1973 [M.R. Crim. P. 44.] Several problems relating to the appointment of counsel have been presented to the committee for its consideration. In order to deal with these problems the committee recommended substantial revision to Maine Rule of Criminal Procedure 44. (a) Contains the prior provisions of Rule 44 with the addition of one paragraph. Many counsel appointed to represent defendants in the Superior Court assume that their responsibility is fulfilled when the defendant has been sentenced. Many times a notice of appeal is filed without any petition being filed for the appointment of counsel to represent the defendant on the appeal and the time periods expire without any action being taken. The new paragraph added to Rule 44(a) is designed to make very clear that appointed counsel continues to represent the defendant until relieved by order of court or until new counsel is appointed. This places upon appointed counsel the direct responsibility to file a notice of appeal if the defendant desires it and to see that a petition for appointment of counsel is prepared for the defendant and presented to the court. Subdivision (b) is intended to achieve some degree of uniformity in the standards for appointment of counsel. It first establishes a standard for what is meant by "sufficient means with which to employ counsel;" that standard being a realistic appraisal of whether the defendant has sufficient means with which to retain the services of competent counsel. For example, a defendant may be receiving a weekly salary which would permit him to pay a small sum weekly toward his counsel fees, but at the same time he may not have a sufficient sum available to him to permit him to retain counsel. The realities of the defense of criminal cases are that no attorney will accept the representation of a defendant in a criminal case unless he receives a retainer in advance. This factor must be considered by the court in determining whether to appoint counsel. On the other hand, the court may determine that the defendant is able to bear a portion of the expense and the technique of the conditional order employed in Rule 39A is now expressly made possible in Superior Court and District Court appointments in felony cases and in Superior Court appointments in misdemeanor cases. (c) One of the major problems commented upon by members of the bar is the inadequacy of compensation of appointed counsel. The committee received the following resolution from the criminal law section of the Maine State Bar Association: The Criminal Law Section of the Maine State Bar Association urges the Criminal Rules Advisory Committee to present to the Supreme Judicial Court a rule or rules for the Supreme Judicial Court, the Superior Court and the District Court setting forth that Court appointed counsel be compensated at a fair and reasonable rate for necessary professional services which are tendered upon presentation of an itemized statement reflecting fully the professional services rendered the date and the time spent at the same, and necessary expenses but, in no event at a rate less than 25 dollars per hour. The committee did not consider it appropriate to recommend to the court the adoption of a specified hourly rate, but did feel it was appropriate to adopt the principle that counsel should be adequately compensated and to enumerate in the rule the factors which the court should consider in determining the adequacy of compensation. The committee felt that the primary concern of the bar was with the fees paid in the District Court and in the Law Court. The committee was also informed that on occasion court appointed counsel are receiving compensation directly from the defendant or from someone else on behalf of the defendant. In the opinion of the committee this is a completely inappropriate practice and should be specifically prohibited by the Rules. If the defendant has funds with which to pay a portion of his counsel fees the court can issue a conditional order and the portion which the defendant is able to pay should be paid directly to the court which can then fix the appropriate fee for appointed counsel.

Advisory Committee Note—1973 [M.R. Crim. P. 44(a).] Subdivision (a) is amended in the second paragraph to make it very clear that counsel appointed in the Superior Court continues to represent the defendant until relieved by order of court and either new counsel is appointed or the defendant enters an appearance pro se.

Advisory Committee Note—1976 [M.R. Crim. P. 44(a).] This amendment is to accommodate the abolition of the felony-misdemeanor distinction by the new Criminal Code, Title 17-A of the Maine Revised Statutes.

Advisory Committee Note—1977 Rule 44(a) of the Maine Rules of Criminal Procedure: See Note 1. [1. Rule 7(a) of the Maine Rules of Criminal Procedure: This amendment conforms the Rule to the re-introduction in the Criminal Code of the crime of murder, 17-A M.R.S. § 201, in lieu of the crimes of homicide in the first and second degree. P.L. 1977, c.510, § 38, effective October 24, 1977.]

Advisory Committee Note—1978 [M.R. Crim. P. 44.] The title of Rule 44 is amended to make clear that the right to counsel has two discrete aspects: (1) The right to retain counsel at the defendant's own expense and to be advised by the court of that right; and (2) The right to be assigned counsel at State expense if the defendant cannot afford to retain counsel and does not waive the right. The amendment conforms the title to the title of Federal Rule of Criminal Procedure 44. Rule 44(a) is amended to bring it into conformity with Newell v. State , 277 A.2d 731 (Me. 1971). In Newell , the Court required the appointment of counsel for all indigent defendants who are facing criminal charges which might result in the imposition of a penalty of imprisonment in excess of six months or of a fine of $500.00 or both. Under the Criminal Code the charge of a Class D crime might result in imprisonment for a period of up to one year. 17-A M.R.S. § 1252(2)(E), or in a fine (for a natural person) not to exceed $250.00, 17-A M.R.S. § 1301(1)(C) Neither penalty invokes the Newell criteria for appointment of counsel. Of course, counsel would have to be appointed if the judge contemplated a sentence of any period of imprisonment. Argersinger v. Hamlin , 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972). The provisions of the last sentence of Rule 44(a), governing withdrawal of appointed counsel, are transferred to Rule 63.

Advisory Committee Note—1979 [M.R. Crim. P. 44(a) and (d).] Rule 44(a) is amended to receive provisions on counsel on appeal from former Rule 39E. The intent of Rule 44(a)(2) is that a motion to relieve counsel on appeal should preferably be entertained by the Superior Court. Rule 44(d) contains provisions transferred from Rule 39F for fees for defense counsel on a state appeal.

Advisory Committee Note—1980 [M.R. Crim. P. 44(d).] The provision of Rule 44(d) is now covered by statute, see Note 8, supra. [8. Maine Rule of Criminal Procedure 37B: Rule 37B is added to clarify and collect in one place the provisions pertaining to appeals by the state and to conform them to 15 M.R.S. § 2115-A, as repealed and replaced by 1979 Laws, c.343, § 2, effective September 14, 1979. The provision for counsel fees for the defendant on appeals by the state is transferred from Rule 44(d) and simplified to conform to c.343, § 2.]

Advisory Committee Note—1989 [M.R. Crim. P. 44.] Rule 44(a)(1) provides that the assignment of counsel provisions apply in both Superior and District Courts. The duty of continuing representation from District Court to Superior Court is now covered in Rule 44(a)(2). The reference to Rule 39E in Rule 44(a)(2) is changed to Rule 44A. A new Rule 44(d) is added reflecting the substance of former Rule 53A.

Advisory Committee Note—1990 [M.R. Crim. P. 44(a)(2).] Rule 44(a)(2) is amended to delete a reference to Superior Court. Both the District and Superior courts are authorized to appoint counsel for a defendant determined indigent after verdict or finding of guilty pursuant to Rule 44A.

Advisory Committee Note—1996 [ M.R. Crim. P. 44(d).] The amendment eliminates the gender-specific pronoun.

Advisory Committee Notes—2001 [M.R. Crim. P. 44(d).] Rule 44(d) is the product of another age. It was promulgated before the adoption of the Code of Professional Responsibility and its comprehensive regulation of conflicts of interest. There is now an advisory committee on the Code and an extensive professional responsibility apparatus. It is to the Advisory Committee on Professional Responsibility that the matter covered by Rule 44(d) should be entrusted. Moreover, the conduct of clerks of courts is now comprehensively regulated by administrative orders and personnel policies.

Advisory Note—July 2010 The amendments to M.R. Crim. P. 44(a), (b) and (c) make changes to subdivisions (a), (b) and (c) necessitated by the establishment of the Maine Commission on Indigent Legal Services (4 M.R.S. §§ 1801-1805 and 5 M.R.S. §§ 959 and 12004-G (25-A)), enacted by P.L. 2009, ch. 419. These changes reflect a transfer of responsibility for indigent legal services from the Judicial Branch to the independent Commission. See Emergency Preamble to P.L. 2009, ch. 419 and 4 M.R.S. §§ 1801 and 1804. The statute implementing the Maine Commission on Indigent Legal Services explicitly references case types that fall under the Commission's purview, including criminal matters. See P.L. 2009, ch. 419 and 4 M.R.S. §§ 1801, 1802, and 1804. The initial paragraph of Rule 44, added by this amendment, clarifies that Rule 44 applies to all cases in which the court is authorized by law to appoint or assign counsel to represent a party at state expense in proceedings governed by the Criminal Rules. A separate amendment adopting a new Rule 88 of the Maine Rules of Civil Procedure incorporates M.R. Crim. P. 44, 44B, and 44C by reference into the Civil Rules to govern those civil actions in which counsel may be appointed and paid at state expense. Addressing determination of indigency, which remains the responsibility of the court, subdivision (b) has three minor modifications. Specifically, the word "assign" is replaced by the word "appoint" because of the new statutory definition for "assigned counsel" (4 M.R.S. § 1802(1)); the word "competent" is deleted because attorneys designated by the Commission must be competent (4 M.R.S. §§ 1801 and 1804(2)(B) and (3)(E)); and a condition is added that the court's initial assignment be "in accordance with subdivision (a)(1)." Subdivision (c) is substantially modified to reflect that the Commission rather than the Judicial Branch is now responsible for establishing rates of compensation for assigned counsel, including allowing reimbursement for expenses incurred by assigned counsel (4 M.R.S. § 1804(2)(F) and (3)(F)), and that the Commission rather than the Judicial Branch is now responsible for paying compensation and expenses to assigned counsel. (4 M.R.S. § 1804(3)). If the court finds that a defendant has sufficient means with which to bear a portion of the expense of representation and conditions assignment of counsel upon payment to the court a specified portion of the counsel fees and costs of representation, the court will transfer funds collected to the Maine Commission on Indigent Legal Services. After an agreed period of transition, the Commission will be responsible for its own collection efforts. In addition to the more significant amendments, the following changes have been made respecting subdivisions (a) and (c): (1) Paragraph (1) of subdivision (a) has been broken up into two separate paragraphs to enhance clarity; (2) A reference to "a court with a unified criminal docket" has been added to paragraph (2) of subdivision (a); (3) The word "appointed" has been replaced with the word "assigned" in subdivision (c); and (4) The current exception in subdivision (c) "except pursuant to court order" respecting the prohibition against assigned counsel accepting compensation for services or costs of defense from the defendant or anyone else on the defendant's behalf, has been deleted.

Advisory Note—July 2010 Rule 44(d) is a transition provision providing a procedural mechanism governing the shift of responsibility for assignment, designation and payment of counsel for indigent defendants during the transfer of responsibility for assigned counsel services from the Judicial Branch to the Maine Commission on Indigent Legal Services. It provides that those attorneys appointed or assigned by the court prior to the Commission's assuming responsibility for assignment and designation of counsel would be deemed designated for assignment to the cases to which they have been assigned by the court until the Commission has the mechanisms in place to assume responsibility these functions.