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CJA-panel defense lawyers’ pay suspended

Brendan Kearney//Daily Record Legal Affairs Writer//February 24, 2011

CJA-panel defense lawyers’ pay suspended

By Brendan Kearney

//Daily Record Legal Affairs Writer

//February 24, 2011

In the latest fallout from the fight in Washington over how to trim the federal budget, payments to private attorneys who represent indigent criminal defendants in federal court have been suspended.

“This is very troubling, and I’m very concerned it’s going to have an impact on the criminal justice system and the quality of defense work in this district,” Maryland Federal Public Defender James Wyda said Thursday, shortly after he passed the news from the Administrative Office of the United States Courts to the more than 100 attorneys on the state’s Criminal Justice Act panel.

Attorneys remembered similar payment slowdowns in the past being resolved fairly quickly, but with the ascendancy of the small-government tea party, there are no guarantees this time around, they said.

“I don’t think I’ve ever gotten a memo quite like this,” said Wyda, who ascended to his post in 1998 and whose office faces hiring and salary freezes of its own. “The magnitude of this is unprecedented.”

Wednesday’s announcement, which leaves thousands of attorneys across the country wondering when they will be compensated for cases they have closed or are legally bound to complete, comes after the Republican-led U.S. House of Representatives passed its Continuing Appropriations Act of 2011 on Feb. 19.

That resolution, which makes deep cuts across the federal government, is not likely to pass — the Democrat-controlled U.S. Senate must still weigh in, and President Barack Obama has indicated he would veto the House version — and if a continuing resolution of some kind is not passed before the current one expires on March 4, the government could shut down.

Everyone is hopeful Congress will reach some compromise by the end of next week.

“Short of a government shutdown, we expect panel payments to resume on Monday, March 7,” Steven G. Asin, deputy assistant director of the AOUSC, wrote Thursday afternoon. “If Congress acts earlier, payments will be made earlier.”

“I think it has to work out,” said Lisa Wayne, president-elect of the National Association of Criminal Defense Lawyers, who practices in Denver and has noticed delayed remittances for several weeks. “I don’t think they have a choice.”

As in many other states, the U.S. District Court in Maryland appoints CJA panel attorneys when the Office of the Federal Public Defender cannot represent a defendant for conflict reasons, generally in multiple-defendant cases involving violent drug gangs.

Members of the select group earn $125 per hour, up to $9,700 per case under the statute, and customarily receive payment at the end of a case, though special arrangements can be made for long, complex cases. They handle between a quarter and a half of all criminal defenses in federal court, depending on the kinds of pending cases.

While some CJA attorneys are partners at big law firms and take a small number of cases, others are solo practitioners, like Thomas J. Saunders, who rely almost exclusively on such cases for their income and for whom the suspension could hit the hardest.

“It just means I have to borrow money until people come to their senses and we get a federal budget,” said Saunders, a Baltimore-based attorney who often handles more than 20 CJA cases at a time. Just this week, Saunders agreed to represent one of the 17 Baltimore City police officers charged in an alleged car towing and repair extortion scheme. Despite the uncertainty broadcasting from Washington, Saunders said he will continue to accept more cases.

“I don’t have any choice,” he said. “This is the work I do.”

Donna Shearer, the CJA supervising attorney for Maryland’s federal courts, said she’s been trying to assuage the fears of people like Saunders by telling them the “temporary problem” will be resolved soon.

“It’s a very fluid situation right now,” she said. “I don’t think anyone should panic at this point.”

Shearer said she and her peers in other states, who happen to be meeting for a conference in San Antonio this weekend, are continuing to process payments with the expectation that new funding will be available in the next two to three weeks. Payments for experts, investigators and other outside services — up to $2,400 per person per case — are also likely suspended until early next month.

“Certainly, if we’re not hearing something good within the next three or four weeks, I’m concerned about my ability to staff cases,” she said.

Joshua R. Treem, one of two panel members on the U.S. District Court’s CJA committee, believes legislators appreciate his colleagues’ “invaluable service” and will find a way to pay them.

“This implicates constitutional issues, which is something I’m confident will resonate with Congress,” he said.


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