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For the first time in 15 years, Congress has approved salary increases for private attorneys who represent indigent defendants under the Criminal Justice Act. By May, they should start receiving $90 an hour for in-court and out-of-court work, though the $125 hourly rate for capital cases will remain the same. The raise became law Nov. 28. New Jersey defenders have been getting $75 an hour in court and out since 1990, but lawyers in other districts have much more cause to celebrate. Though most districts now match New Jersey’s $75 hourly rate for courtroom time, they pay only $55 for non-courtroom endeavors. Unlike the old rate, the new one will be standard across all districts and the differential between in-court and out-of-court compensation will be eliminated. The new rate is not only the first authorized increase since 1986, but is the biggest ever, in percentage and dollar amounts, says Dick Carelli, a spokesman for the Administrative Office of the U.S. Courts. If the federal judiciary had its way, the pay jump would have been even higher. The AOUSC was asking for $113, which, says Carelli, is what the panel defenders would be making if Congress had put its money where its votes were in 1986, when it authorized $75 for in-court work and $55 for out-of-court work, along with annual cost of living adjustments. Congress never funded the annual increases, however, and failed to allocate sufficient funds even to pay the $75/$55 in all but a few districts. As a result, only a handful of districts, including New Jersey, got the top official dollar at first, and a few never reached it at all. Until 1996, some were paying as little as $40 for out-of-court efforts and $60 for in-court time. The District of New Jersey is one of about a dozen across the country now paying $75 across the board to its federal defender panel. Others include the Eastern and Southern Districts of New York; the Northern, Central and Southern Districts of California; the District of Columbia; Hawaii, Alaska; and Oregon. Top dollar also is paid in parts of a few districts in Arizona, Michigan, New Mexico and Washington. The more populous districts were “on the early end of getting the big money,” explains Carelli. The federal judiciary has been pushing for the increase for three years, says U.S. Magistrate Judge John Hughes, who sits in Trenton, N.J., and is a member of the district’s CJA Panel Selection and Management Committee as well as the U.S. Judicial Conference Committee on Defender Services. Richard Coughlin, the federal public defender for New Jersey, credits Hughes with being one of the key forces behind the increase. The increase was essential “because federal criminal law is so complex. There is so much at stake with sentencing guidelines and mandatory minimums that you have to attract the best lawyers,” says Hughes, a former assistant federal public defender. He says bipartisan support from Chief Justice William Rehnquist and present and former Attorneys General John Ashcroft and Janet Reno, together with support from the American Bar Association and other bar groups, helped push the increase through this time. In March, U.S. District Judge John Heyburn II testified before a House of Representatives subcommittee in support of increased fees for CJA attorneys, calling their low rate of compensation “one of the biggest impediments to maintaining a fair system of justice.” Heyburn, chairman of the Judicial Conference’s Budget Committee and the chief judge for the Western District of Kentucky, also told the legislators, “In some districts, judges are unable to find qualified attorneys to take CJA appointments because the current rate often does not cover overhead costs.” Attracting qualified counsel has not been a problem in New Jersey, according to Hughes and U.S. District Judge Stephen Orlofsky, who chairs the district’s CJA panel, which selects the 100 private attorneys on the district’s list to be assigned as federal defenders. Under the almost 4-year-old district plan for New Jersey, panel lawyers, 60 from the Newark vicinage and 20 each from Camden and Trenton, must be experienced criminal defense lawyers to qualify for three-year stints on the list during which they are assigned to cases in alphabetical rotation. “We have not gone begging for applicants,” says Orlofsky, while acknowledging some falloff in numbers in recent years. That might have been due to the booming economy, which offered more money elsewhere. Now with the recent downturn, “it will be interesting to see how many applications we get,” says Orlofsky. Though the $15-per-hour increase for New Jersey lawyers is “a piddling amount,” says Coughlin, “it might encourage people on the fence” to try to get on the panel. Hughes agrees that the $90 rate “is really not that much, particularly in New Jersey,” where overhead is so costly and most CJA lawyers ordinarily charge two or three times that amount for their private clients. “More than the money is the symbolic message from Congress that it is important that criminal defendants have effective assistance of counsel,” comments Hughes. As for future increases, Hughes says he’s still hoping for a cost-of-living adjustment like most federal workers get every year, and the Judicial Conference will continue to push for regular upward adjustments. He says the conference is discussing an increase in the $125 rate for capital cases, which went into effect a few years ago. Cost-of-living adjustments would boost that figure to about $156 now, he says. CJA panel attorney Maria Noto calls the increase “terrific.” The Matawan solo practitioner says she charges $200 to $300 per hour in her private practice but “I’m always happy to get the CJA work,” which amounts to about three cases a year. Not only does she like practicing in federal court, but despite the lower pay, “I know I will get paid,” she says. That is not always true with her private clients. Coughlin calls the increase “a step in the right direction and hopefully a sign that in the future there’ll be a bit more attention paid to this on a regular basis rather than waiting 10 or 15 years between rate increases.”

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