Some of you enjoyed an earlier post entitled The best gift I ever got from a convicted killer. There is a back story to that post. Although the appeal was successful, and Tommy had his sentence cut in half resulting in his immediate release, the state district judge was upset. He allowed payment for my brief printing costs but nothing more.
I go paid zip for the appeal. Nothing for the hours and hours I spent writing the brief that the Nebraska Supreme Court relied upon to immediately release my client. Nothing for the overnight travel to make the oral argument. Nothing for the oral argument.
To say that I was furious is an understatement. I didn’t care about the money. What I carried about was the not too subtle hint from the bench that overturning a sentence in a murder case would be “punished” if a lawyer had the temerity to try.
When I became a judge, I quickly realized that I would now be in the position of approving counsel’s request for fees under the CJA. In this post, I will explain how I approach the process. I hope to hear back from CJA lawyers about their experiences. I welcome comments from others too. This is a “behind the curtain” stuff, but it is critical to the functioning of the federal courts. We should bring this issue out of the dark.
We have a Criminal Justice Act Plan.* It was implemented to create the Federal Public Defender for the District of Nebraska and to create the CJA panel. If you are charged with a crime and do not retain your own counsel, you will be represented by an assistant federal public defender or a CJA panel attorney if you cannot afford counsel. The decision is up to the Magistrate Judge but it is based upon a nomination from the Federal Public Defender who manages the panel. The Federal Public Defender’s management of the panel is overseen by a committee. The committee consists of two judges and a lawyer from the panel.**
Roughly half the cases are “paneled,” meaning they go to members of the CJA panel. The other half go to the Federal Public Defender’s office. The reason for this division is two-fold. First, the Federal Public Defender doesn’t have the staff to take all the cases, and, second, the Federal Public Defender could not take all the cases anyway due to conflicts of interest.
Excluding capital cases, panel attorneys are paid $126 per hour plus their expenses. There is a maximum fee that may be charged unless I approve an “excess” voucher and the Chief Judge of the Eighth Circuit does so too. Here are the case compensation maximums at present: Felony (including pre-trial diversion of alleged felony)–$9,800; Misdemeanor (including pre-trial diversion of alleged misdemeanor)–$2,800; Post-conviction proceeding under 28 U.S.C. §§ 2241, 2254 or 2255–$9,800; Other representation required or authorized by the CJA (including, but not limited to probation, supervised release hearing, material witness, grand jury witness)–$2,100. Counsel are entitled to expenses over and above these maximums such as when they hire their own interpreters.
It would wrong to assume that panel attorneys make a lot of money handling these cases. This is true for a number of reasons. For example, let’s say a lawyer takes a felony case in our district. The median time to disposition for criminal cases in our district is 7.5 months. So, most of the time panel attorneys are looking at a significant commitment of time for each federal case accepted, and the lawyer is not likely to be paid until a year after the appointment is made. Moreover, most lawyers can only expect a few cases each year and many get only one and some none. At $126 per hour, it is not a gravy train.***
Now, let me tell you how I approach the process of reviewing CJA vouchers. (I exclude capital cases because there are so few of them, and they present special issues.) Here is my approach:
- I receive a packet from the Federal Public Defender’s employee who reviews the voucher for mathematical accuracy and for compliance with various “technical” requirements. The voucher will include detailed backup information in the form of a spreadsheet showing time slips for each activity the lawyer undertook. It is broken down to one-tenth of an hour and contains a short description of the activity performed. There is also detail, including supporting receipts, for expenses claimed. If the lawyer seeks approval over the case compensation maximum, the lawyer is obligated to provide a letter explaining why the excess should be approved.
- The legal test for approval of an “excess” voucher, which comes from the CJA, is this:”Payment in excess of any maximum amount . . . may be made for extended or complex representation whenever the court in which the representation was rendered, . . . certifies that the amount of the excess payment is necessary to provide fair compensation and the payment is approved by the chief judge of the circuit.” (Emphasis added by Kopf).
- I review the packet myself. I don’t delegate that function to anyone else.
- I assume that if a lawyer said he or she spent an hour doing this or that the lawyer’s time claim is accurate. I almost never challenge a lawyer’s claim of time. Remember, a lawyer could forfeit his or her license or be prosecuted federally for not telling the truth on the voucher.
- If the voucher does not exceed the maximum, I approve the voucher after a superficial review. I almost never reduce a voucher that is below the maximum.
- For excess vouchers, my review is more detailed. Initially, I review the letter from the lawyer and compare it to the voucher. I then review a docket sheet printed from CM/ECF by my assistant to remind me of the scope and breadth of the case. After that, I decide whether I will approve the voucher in whole or in part. I seldom “cut” excess vouchers. But, if I do, I won’t cut the voucher until counsel and I confer on the reasons for my reduction. I write a letter to counsel explaining my views and giving counsel an opportunity to object and explain in further detail. Most of the time, I don’t change my mind, but on several occasions counsel has convinced me that I am wrong. If so, I approve the voucher. If I decide to approve an excess voucher, I write a detailed letter to the Chief Judge of the Eighth Circuit (now Chief Judge Riley). Each such letter contains my personal views and is specific to that particular case. By the way, imagine the burden on the Chief Judge of the Circuit having to review “excess” vouchers from each district.
- One of the toughest issues I confront is when I think counsel spent too much time, but I can see why counsel could reasonably come to a different conclusion about the need for the expenditure of that time. In those circumstances, I will not substitute my judgment for the judgment of counsel.
- I then send the packet off to Chief Judge Riley. If I hear nothing back, that typically means that he too has agreed on approval. Sometimes, the Chief will reduce a voucher. If that occurs, the Federal Public Defender notifies me and I review the rationale of the Chief Judge for reducing the voucher.
- If I have approved an “excess” voucher but the Chief Judge of the Circuit disagrees, I consider that to be a “reversal.” In other words, I take that decision very seriously and I do my best to incorporate the Chief’s point of view in subsequent voucher reviews. That said, the Chief’s review has to be case specific, so I do not treat a disapproval by him as necessarily having application to other cases.
So, that is how I deal with CJA vouchers. What say you?
*I had the privilege of drafting our first Plan with the help of Dean Ross at the Defender Services branch of the Administrative Office of the United States Courts. Dean is the son of Judge Ross. In addition to being a great lawyer, with experience as an Assistant Federal Public Defender, I remember Dean as a terrific track athlete at Nebraska where he lettered in 1977-1978.
**Each district has a CJA Panel Attorney District Representative selected from among the members of the CJA panel, with the approval of the chief judge. The panel representative leads their district CJA panel; attends the annual National Conference of CJA Panel Attorney District Representatives; serves as liaison between the CJA panel and the federal defender organization, the court and the AO’s Office of Defender Services; comments on proposed legislation relating to the CJA; works toward improving the quality of representation as well as the conditions under which panel attorneys provide representation. Our representative is Alan Stoler. Alan has experience as a state prosecutor followed by many years of experience as criminal defense lawyer handling the most difficult of state and federal cases. He does a terrific job representing the interests of CJA panel members.
***When the rate was $100 per hour, an economic analysis concluded that CJA panel counsel netted $36 per hour before taxes. See here.