Federal Public Defender's OfficeWestern District of New York
CJA Developments |
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In connection with this effort, they have sent us some guidelines for attorneys to use in preparing their affidavits. A copy of the guidelines is at the link below if you feel you need it. The District Court Finance Department has the guidelines, also. CJA Affidavit Guide (WordPerfect Format) *** *** |
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*** Model Article for Federal Defender
Newsletters on the The federal judiciary has included in its FY 2000 Defender Services appropriation request funding to implement a $75 hourly Criminal Justice Act (CJA) private "panel" attorney rate nationwide. If Congress approves the judiciary's request, the $75 maximum hourly rate for in-court and out-of-court work in non-capital cases would take effect on April 1, 2000. The issue of the $75 rate [was][will be] an important topic at the National Conference of Panel Attorney Representatives, [to be] held on March 6-7, 1999, in Arlington, Virginia. The panel attorney representative for the _________ District of ________ is ______________ In his 1998 Year-End Report of the Federal Judiciary, Chief Justice William H. Rehnquist urged Congress to give "very serious consideration" to the judiciary's request for funding to implement the $75 rate in FY 2000. Justice Rehnquist observed that inflation has eroded the currently authorized hourly rates and that "[i]nadequate compensation for panel attorneys is seriously hampering the ability of judges to recruit attorneys to provide effective representation." In 1986, Congress enacted legislation which authorized the Judicial Conference to increase the hourly rates paid to panel attorneys from $60 in-court/$40 out-of-court to $75, and to make annual cost-of-living adjustments to the $75 rate beginning in 1990. Although the Judicial Conference has approved the $75 rate for in-court and out-of-court work in 93 of the 94 judicial districts, most districts have received only one $5 per hour increase to the $60/$40 rates set by statute in 1984, over 14 years ago. Congress has appropriated funds sufficient to pay higher rates up to $75 in only 16 districts, which were the first to apply for alternative CJA hourly rates. The $75 rate is substantially lower than the $104 per hour rate which would be authorized in 1999 if the annual federal pay increases, approved by the Judicial Conference for CJA rates, were applied. There is widespread support in the federal criminal justice system for the $75 hourly rate, from judges, the Department of Justice, private bar associations, and federal defenders. The Federal Judges Association, in endorsing the rate, stated that the current hourly rates are "significantly compromising the ability of the court to recruit and retain attorneys under the Criminal Justice Act." The Federal Magistrate Judges Association endorsed the rate as "imperative...to assure that the courts can appoint qualified and experienced counsel." The Department of Justice also has indicated its support for the $75 rate. At its August 1998 meeting, the ABA's House of Delegates unanimously approved a resolution (adopted by the ABA's Criminal Justice Section in March 1998) urging Congress to fund the CJA at a level sufficient to support implementation of the $75 rate and annual cost-of-living increases for CJA panel attorneys, and urging the Judicial Conference to make every effort to obtain this funding. The NACDL, National Legal Aid and Defender Association, and Association of Federal Defenders likewise have passed resolutions in support of the $75 rate and cost-of-living adjustments. *** NEW RULES REQUIRE PUBLIC DISCLOSURE
OF The Criminal Justice Act (CJA), 18 U.S.C. '3006A, now requires that the amounts paid to court appointed attorneys be made publicly available upon the court's approval of the payments for cases filed on or after January 25, 1998. Under the new law, the court must make a copy of the voucher, either redacted, indicating only the amounts approved for payment according to categories of services listed in the statute, or unredacted, available to the public. See 18 U.S.C. '3006A(d)(4). The law also requires that attorneys be given reasonable notice prior to disclosure, in order to allow them to request redaction of information to protect the interests of their clients, including the right to protect any person's 5th amendment right against self-incrimination; to protect the defendant's 6th amendment rights to effective assistance of counsel; the defendant's attorney-client privilege; the work product privilege of counsel; the safety of any person; and any other interest that justice may require. Look for the "Notice to Court Appointed Counsel of Public Disclosure of Attorney Fee Information" accompanying the CJA 20 or CJA 30 form (Appointment and Authority to Pay Court Appointed Counsel). The form describes the new requirements, and the text of the statutory provision is provided on the back of the notice. Note, the disclosure law only applies to the voucher and not to any supporting information attached to the voucher. Therefore, the supporting information does not have to be made public, even when unredacted copies of the voucher are released. CJA PANEL ATTORNEY PAYMENT SYSTEM Along those same lines, a new CJA Panel Attorney Payment System is under development and expected to be implemented nationwide during 1999. The new system is being designed as Congressional scrutiny of Defender Services appropriation continues and to provide the judiciary with a method to access additional data to answer inquiries, justify budget requests, manage the program and provide an in-depth analysis of the costs of representation within the courts. One of the changes includes processing payments for transcripts ordered by panel attorneys through the new system-currently, transcripts are not part of the CJA payment system. The new system will allow individual courts to generate their own reports and track the status of vouchers and payments. The courts will have the ability to track the payment history of a case at any point in time. *** $75 a Reality This year we celebrate the 25th anniversary of Gideon. Many criminally accused since Gideon have learned that justice is achievable without money, but only if a dedicated lawyer is willing to work hard for that justice, not for money. Rates for assigned counsel in this country are abysmally low, far less than necessary to pay even modest office expenses. Federal court rates are not much better than state court rates. There may be hope on the horizon, however. Congress appears inclined to fund the previously statutorily mandated rates of $75 an hour, which is not sufficient compensation, surely, but a step in the right direction nevertheless. The Defender Services Division of the Administrative Office of the United States Courts has joined the NACDL, the ABA, the NLADA, the ACLU and many others in a concerted effort to convince Congress that a rate increase is necessary if Gideon is to retain its promise. We encourage you to join with your colleagues on the local, state and national level to accomplish this task. To that end, below please find a "fact sheet" that you can use to educate your elected representatives and others as to the substantial reasons for this minimal increase in assigned counsel rates. *** Fact Sheet Concerning the $75 Alternative Hourly Rate for Criminal Justice Act (CJA) Panel Attorneys (Defender Services Division, August 6, 1998) Current Hourly Rates - Private CJA "panel" attorneys are paid hourly rates of $65 in-court and $45 out-of-court in most Judicial districts, despite the Judicial Conference's having approved, subject to the availability of funds and pursuant to its statutory authority under the CJA, 18 U.S.C. 1 3006A, a $75 rate for in-court and out-of-court work in 93 of the 94 districts. History of the Rate
Fairness and Economics of the $75 Rate - Most panel attorneys have received only one $5 increase since the provision authorizing the $60 in-court/$40 out-of-court rates was enacted in 1984, 14 years ago. By FY 2000, it is projected that the $75 rate will have the purchasing power of only $49 as expressed in 1986 dollars, the year in which the CJA was amended to authorize the Judicial Conference to implement the $75 rate. (The $75 rate is substantially lower than the approximately $100 per hour rate which would be authorized if the annual federal pay increases, approved by the Judicial Conference for CJA rates, were applied.) The buying power of the current $65/$45 rates relative to 1984 dollars is the equivalent of only $42 per in-court and $29 per out-of-court hour. Thus, panel attorney pay has effectively been reduced by nearly 35%. Cost of Implementing the $75 Rate - Assuming a $5 increase to the $65/$45 rates in FY 1999, current estimates of the cost of implementing the $75 rate in FY 2000 would be $14.1 million, assuming an April 1, 2000 implementation date. Comparison of CJA Rates to Other Federal Programs and Overhead Costs - Of 59 federal agencies listed as paying for private counsel in a 1992 General Accounting Office fact sheet, Information on the Federal Government's Use of Private Attorneys (GAO/GDD-93-17S), CJA rates are among the lowest by a substantial margin. CJA rates today are below even the initial $75 rate standard established by the Equal Access to Justice Act (28 U.S.C. § 2412 (d)(2)(A)) in 1980 for awarding attorney fees to litigants who prevail in a civil action against the United States. That rate was increased to $125 by the Contract with America Advancement Act of 1996. Indeed, as part of the FY 1998 appropriations act for the judiciary, Congress enacted legislation permitting defendants in criminal cases to be reimbursed at the $125 rate for fees paid to retained counsel, where the prosecution is determined to be vexatious, frivolous, or in bad faith (Pub. L. No. 105-119). The March 1993 Report of the Judicial Conference of the United States on the Federal Defender Program formally embraced the fundamental notion that panel attorneys providing representation under the CJA should receive compensation that covers "reasonable overhead and a fair hourly fee." Nevertheless, data taken from The 1997 Survey of Law Firm Economics (Altman Weil Pensa, 1997) indicates that the average overhead cost for law firm associates is approximately $58 per hour, excluding certain items, such as paralegal costs, which are reimbursable under the CJA. Attorneys in districts which pay the $65/$45 rates earn an average of $48 per hour (based on the ratio of six out-court hours to each in-court hour in those districts). Crisis in the Federal Criminal Justice System - The failure to implement the $75 rate is leading toward a crisis in the federal criminal justice system. Judges from all over the country are reporting that the current hourly rate limits -- which in many places do not even cover counsel's basic overhead costs -- seriously compromise their ability to find qualified attorneys to accept CJA appointments. Dissatisfaction with the quality of services furnished by the CJA panel attorneys emerged as a consistent theme among the factors cited by chief judges as driving their courts' decisions to establish 25 new federal defender offices since 1990, a 40% increase. Expressions of Support - Attorney General Janet Reno has spoken about the need to obtain adequate funding for court-appointed criminal defense systems. William Murphy, President of the National District Attorneys' Association, Gerald Lefcourt, President of the National Association of Criminal Defense Lawyers (NACDL), and Ronald Goldstock, a former prosecutor who heads the Criminal Justice Section of the American Bar Association (ABA), Jointly authored an article in which they announced their commitment to work together with the Attorney General to give national attention to the crisis in funding for the defense function and to support more realistic CJA appropriations by Congress. In March 1998, the ABA's Criminal Justice Section unanimously adopted a resolution urging Congress to fund the CJA at a level sufficient to support implementation of the $75 rate and annual cost-of-living increases for CJA panel attorneys, and also urging the Judicial Conference to make every effort to obtain this funding. The ABA's House of Delegates unanimously approved the resolution at its August 1998 meeting. The NACDL Board of Directors passed a resolution in April 1998, which supports and Joins in the ABA resolution. A Matter of Vital Importance - The defense function embodied in the Sixth Amendment right to counsel and Gideon v. Wainwright is not only a critical component of the criminal Justice system but also foundation upon which the rights and liberty of all Americans are protected and ensured. When CJA panel attorney hourly rates do not offer fair compensation or even cover overhead costs, the defense function is undermined. Enabling the Judicial Conference to use its authority, as provided under the CJA, to implement the $75 rate for panel attorneys is a matter of vital importance. |
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