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Rule 44 – Right to and Assignment of Counsel

May 13, 2021 | Criminal Procedure, Maine

(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. ยง1804(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.

Me. R. Uni. Crim. P. 44

Amended effective November 2, 2016; last amended effective April 4, 2017.

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.