'It's a crisis': Federal government stops paying private attorneys in court-appointed cases

SAN DIEGO — For the next two-and-a-half months at a minimum, private defense attorneys in San Diego and across the nation are being asked to work without pay while defending court-appointed clients in federal criminal cases.

That’s because on July 3, congressional funding ran out for the federal program that pays private attorneys to represent indigent defendants who, for various reasons, can’t be represented by federal public defender organizations such as Federal Defenders of San Diego.

The private attorneys are hired by the court under the Criminal Justice Act to provide defendants with constitutionally mandated defense counsel guaranteed by the Sixth Amendment. Those attorneys already accept well-below-market hourly rates for taking on what are commonly known as CJA cases. Now, they’ve been told they won’t be paid until at least the start of the new fiscal year, on Oct. 1, for the work they perform on CJA cases between July 3 and Sept. 30.

“It’s a crisis,” Southern District of California Chief U.S. District Judge Cynthia Bashant said Friday. “We’ve weathered crises before, and we’ll figure out a way to deal with it, because defendants have to have attorneys … But it is a crisis.”

The full effect of the pay freeze in San Diego federal court is not yet known. The U.S. Courts government website reported this week that several long-tenured CJA attorneys in North Dakota recently resigned from the local CJA panel over the funding issue. And court records showed a Seattle-based CJA attorney filed a motion to withdraw as counsel Wednesday in a case before the 9th U.S. Circuit Court of Appeals, writing that “working on this case without pay will create a financial hardship for my firm.”

San Diego attorneys on the local CJA panel who spoke to The San Diego Union-Tribune expressed concern about the negative effect it will have on both them and their clients.

“It’s a no-win situation,” defense attorney Martha Hall said. “Most of the attorneys will probably make the sacrifice for their clients … because we all believe in the Sixth Amendment and a defendant’s right to zealous representation. But what a hard thing to ask.”

In a letter to Congress earlier this year, the federal judges who head the budget committee of the Judicial Conference of the United States expressed similar concerns.

“Faced with such a long delay in receiving payment, these attorneys and their experts could decline to accept future CJA appointments by a court, potentially creating unlawful delays in the constitutional right of defendants to a speedy and fair trial,” the judges wrote.

Or as Hall put it: “Justice delayed is justice denied.”

The funding issue is a result of the continuing resolution that Congress approved in March, just hours before a looming shutdown, to fund the government through the end of the current fiscal year. The legislation froze most spending at fiscal 2023 levels, including $8.63 billion to fund the judicial branch, which was $391 million less than the judicial branch requested. Within that funding, the legislation specifically provided $1.45 billion for Defender Services, which was $129 million below the requested amount.

“Because of the hard freeze funding level, funding is not available within other Judiciary accounts to address the funding gap,” the U.S. Courts wrote on its website this week.

In the federal court system, more than 90% of defendants can’t afford attorneys, according to U.S. Courts data. While public defender organizations such as Federal Defenders of San Diego handle about 60% of those cases, the other 40% are appointed to private attorneys.

In San Diego, private defense attorneys must apply to be on the CJA panel, and only the “best of the best” are chosen, defense attorney and CJA panelist Meghan Blanco said.

“Sometimes people think of appointed counsel not being that great, but the federal CJA panels are the exact opposite,” Blanco said.

CJA attorneys are paid $175 per hour for non-death penalty cases, which Blanco said is a fraction of what she charges retained clients.

“People see that rate and think it’s a lot,” said CJA panelist Ryan Stitt of Stitt Vu Trial Lawyers, “but we have to pay our staffs, health insurance, rent, malpractice insurance, office equipment, access to research tools — it’s really not a particularly generous rate. From a business standpoint, it’s far less advantageous to do this kind of work.”

Local panel attorneys said they take on CJA cases for less money because they believe in the importance of the Sixth Amendment and representing indigent defendants.

“Many of us, typically, are former federal public defenders,” Stitt said. “We do this because we think it’s the right thing to do, we like it and it’s rewarding in other ways.”

Bashant, the chief judge, and the CJA attorneys said the effect of the funding freeze will come down to each attorney’s individual situation. While many of the CJA panel attorneys have robust and lucrative private practices, others rely more heavily on CJA cases.

“So far, we haven’t had any attorneys asking to be taken off a case,” Bashant said. But she believes the district’s judges would likely honor any such request from a financially strapped defense lawyer. “It’s not fair to say, ‘You have to stay on this case,’ if you can’t afford to do so.”

Aside from the CJA attorneys themselves, the funding freeze also affects the interpreters, private investigators, defense experts and other outside service providers that CJA attorneys hire to help them defend their clients.

“The important thing in doing good criminal defense work is working with third-party experts, who are used to educate the court on really nuanced issues,” Stitt said.

“Many of those vital roles may go unfilled for three months, with unpredictable consequences for the criminal justice system,” according to the U.S. Courts website.

Stitt said he once worked with an expert who was “outraged” by an unexpected one-month billing delay. “Now imagine if I called him and asked him to wait until at least October,” Stitt said.

Hall worries that in the end, it’s the defendants who will be most negatively affected.

“If we as attorneys have a retained case or a case appointed through the state court system, will there be a conscious, or subconscious, or unconscious prioritizing of those cases?” Hall said. “This certainly puts us in a pinch.”