Like many lawyers handling federal indigent defense cases, Wisconsin attorney Rob Ruth isn't in it for the money. His pay rate has climbed to $125 per hour over the years, but remains a fraction of what he would charge a private client and does little more than cover his overhead costs.
"As the rate has come up, it has helped retain better attorneys, and I think that for a lot of attorneys it has made it less of a loss to take a federal case," said Ruth, a Criminal Justice Act (CJA) panel attorney for about 20 years. "I don't have to take it on the chin so hard when I take a federal appointment."
That is set to change, depending on what Congress does with the budget when it returns to Capitol Hill next month after the summer recess. The U.S. Judicial Conference has announced plans to reduce compensation rates to the private CJA panel attorneys by $15 per hour starting on September 1 unless Congress increases support for the courts in the 2014 budget. The cut rates would continue for the next 13 months.
The move would save around $50 million for the defender services budget, which supports the federal public defender offices as well as CJA panel attorneys, according to the Administrative Office of the U.S. Courts. There are more than 10,000 panel attorneys nationwide, handling between 30 percent and 40 percent of indigent cases when public defender offices have conflicts or otherwise can't represent defendants.
That savings would allow the federal courts to prevent further staffing layoffs at federal public defender offices, which took the brunt of $350 million budget cuts to the courts this year as part of sequestration, conference chairman William Traxler, chief judge of the U.S. Court of Appeals for the Fourth Circuit, wrote in an August 16 letter to U.S. District Judge Catherine Blake of Maryland, chairwoman of the Judicial Conference's defender services committee.
Under the new plan, payment to panel attorneys would drop from $125 per hour to $110 in noncapital cases and from a maximum of $179 to $164 per hour for capital cases. The Judicial Conference already had planned to delay September's payments to panel attorneys for four weeks, so they could be paid out of the budget for the fiscal year beginning on October 1.
Traxler wrote that reducing panel attorney compensation, deferring panel attorney payments and keeping federal public defender offices at low funding levels are "undesirable, and may impact the delivery of justice, but are necessary to avoid permanent damage to the federal defender program."
"Measures of this kind, however, are not sustainable in the long term, and certainly would not be required if the judiciary were receiving an appropriate level of funding in this account," Traxler wrote. "The Committee nonetheless remains committed to the goal of ensuring that the defender program can operate within its annual appropriations."
Norman Reimer, executive director of the National Association of Criminal Defense Lawyers, said the move would be "truly lamentable" and "definitely a step backward." Now, Reimer said, both the public and private side of indigent defense has been seriously degraded without any demonstration that they have not been efficient uses of taxpayer money.
NOT A 'WIDGET '
Almost all CJA panel attorneys take cases out of commitment to the justice system, he said. Lower rates raise questions about whether small and solo practitioners can afford to handle these indigent cases. "I think there's a danger that some lawyers who are just getting by might have to stop doing this work," he said. "We have to look at the indigent defense system as a whole, and it needs to be adequately funded. This shouldn't be looked at as a widget that can be mass produced."
Thomas Giovanni, a former public defender now counsel to the Justice Program at the New York University School of Law Brennan Center, said he has seen what happens when state indigent defense systems cut their compensation rates. Attorneys try to make up for the reduced money by churning through cases, which means churning through clients. "It's a disincentive to work hard. It's more of an incentive to get in and get out and do the minimum possible," Giovanni said. There are hidden costs, such as an increase in meritorious appeals, he said.
Congress, for its part, is working on appropriation bills that would restore the sequestration cuts. The House Appropriations Committee approved fiscal year 2014 appropriations that include $6.5 billion for the courts, roughly the same level it was in 2013, before sequestration cuts hit. A Senate appropriations subcommittee approved $6.7 billion for the courts, an increase of $148 million or 2.2 percent above the fiscal year 2013 level.
Still, federal courts officials warn that disagreements among the House, Senate and White House over other budget priorities could lead to yet another partisan battle in Congress that ends with a continuing resolution that either retains the sequestration cuts or otherwise keeps the federal courts budget flat.
Earlier in August, almost all of the nation's chief judges, who described themselves as "the boots on the ground in our nation's federal trial courts," signed a four-page letter describing how low funding has weakened courthouse security, reduced public safety because of probation and parole cuts and caused dire problems for federal public defender offices.
The extent of the fallout from the rate reduction depends on each lawyer's practice, Ruth said. It would hit hardest the lawyers in districts with the busiest criminal dockets, where the CJA cases could make up a larger percentage of a lawyer's cases. And it depends just what sort of financial hit a lawyer is willing to take. "Where is that tipping point?" Ruth said.
For Grey Tesh, a criminal trial lawyer in Palm Beach, Fla., the cases practically qualify as pro bono work as it is. He won't stop taking cases — it's his way of trying to help out the court system in general. It also helps him maintain his trial chops. "I probably lose money because I could be using that time trying to get paying clients," Tesh said.
Contact Todd Ruger at firstname.lastname@example.org.