Resigned to a 13.5 percent cut in pay, private attorneys from around the state who accept federal criminal cases seem willing to take one for the team if it helps save the beleaguered federal defender program from further budget attacks.
"The backbone of the federal defense bar is the federal defender office," said Kevin Luibrand, an attorney in the Northern District who does assigned defense work as part of a broad practice. "It supports in many ways the Criminal Justice Act panel as a resource, many times as cocounsel, and the expertise in that office is collectively better than any law firm within the district."
The U.S. Judicial Conference on Aug. 16 announced plans to reduce compensation to private Criminal Justice Act (CJA) attorneys starting Sept. 1 in an effort to prevent further layoffs and furloughs in the federal defender offices, which bore the brunt of the $350 million sequester-related cuts to the courts.
Authorities say that reeling back compensation for CJA attorneys to $110 per hour from $125 and to $164 from $179 for capital cases would trim anticipated cuts to the federal defender offices to a 10 percent reduction, rather than 14 percent to 23 percent. They also have decided to defer September's bill into the first month of the next fiscal year.
CJA panel attorneys nationwide handle about 30 percent to 40 percent of indigent cases when the public defender has a conflict or otherwise can't represent a defendant.
David Touger of Peluso & Touger in Manhattan said that while the reduction "makes things a lot harder, what's going to be shown is nobody will walk away or stop working as hard. We realize we have a job to do. The hope is Congress will do their job, like we do our job."
Touger, a member of the Southern District's panel for about 15 years, could remember "a handful" of times over those years when he was not paid for a few months waiting for congressional budgets to go through. But he could not recall a decision to cut the rate.
"My hope is this is a short, interim situation," said Touger, whose caseload is about half retained and half appointed.
Referring to a letter sent last week to Congress from 86 federal district court judges decrying the cuts, Touger added, "When federal judges get mad, things tend to happen. That's just my experience."
César de Castro of Manhattan has been on the Southern District panel for four years and started on the Eastern District panel earlier this year. He said he had no intention of cutting back on his appointed work.
"I'm going to take what I can handle," he said. The funding cuts, he added, made him "reflect on" the purpose of being a part of the very busy panel. "It brings me back to why I do it. I want to do the work. We're still busy. The work still has to get done."
Bobbi Sternheim of Manhattan, a federal defenders board member and the Southern District's CJA panel attorney district representative, said that no matter the budget cuts, representation of the poor will remain the same.
"The caliber of our panel member is such that while no one is happy, it's not going to stop our dedicated performance," he said. "I don't want frustration to cloud effective representation and I don't think it will."
Sternheim, who also is a member of the CJA panel peer review committee, noted the "irony" that the cuts were occurring just after the 50th anniversary of the landmark 1963 U.S. Supreme Court affirmation of the right to counsel in Gideon v Wainwright, 372 U.S. 335.
"Gideon's trumpet," she said, is "being severely muffled."
Edward Wilford of Manhattan handles "a fair amount" of assigned cases in the Southern and Eastern districts, in addition to capital cases throughout the country.
"I'm not going to jump ship, I made a commitment to do the work," he said. Still, he added, the lower pay "makes it more difficult."
Rodney Personius, an attorney in Buffalo who serves on the CJA panel in the Western District, agreed.
"Certainly we would rather not have to take this step and be part of this reduction in the rate for panel attorneys," said Personius, the regional representative in the western quadrant of the state. "On the other hand, the federal defender program is so vital to the criminal justice process, if that is what it takes to preserve the program, we are prepared to make that sacrifice, and I think I speak not just for myself, but all the panel members in the Western District."
Edward Menkin, an attorney in Syracuse who has served on federal assignment panels for more than 30 years, said he would be surprised if many attorneys dropped off the CJA list because of the temporary cutback.
"The federal defender has done very good work with very limited resources and anything that can be done to sustain their operation, even if it means a reduction for the CJA panels, I think is a good thing," Menkin said. "It is disappointing, but understandable that this has to happen."
Menkin added: "Anyone who would lessen their professional efforts because they are paid $15 less shouldn't be on the panel in the first place."
Northern District CJA panel representative Lee Greenstein of Albany said lawyers "doing really hard work" for which they were not adequately compensated will now toil for even less. There are some 100 CJA attorneys in the Northern District.
"The defender office and the CJA panels are not over-bloated government agencies," Greenstein said. "Nobody is taking fat-cat trips. Nobody is drawing a big salary. These are agencies defending indigent people who are barely getting by."
But Greenstein said he is "sure everyone will soldier up and do their best."
Marianne Mariano, the Western District federal defender, said there are roughly 130 CJA attorneys between Rochester and Buffalo. Mariano said she is not at all surprised by the apparent wilingness of CJA attorneys to work for less.
"It is very generous of them, and I am very grateful," Mariano said. "They have been so supportive. The decision [of the Judicial Conference] does save my office from devastation, but we still need full funding. We are shuffling chairs on the deck of the Titanic and Congress needs to fully fund the defender services line."
Lisa Peebles, the federal defender in the Northern District, said the "temporary fix" will buy her some time. Peebles and her staff are losing 17 days this year to furloughs, three employees have been laid off and a top investigator's hours were sliced to part time. She said the CJA attorneys have "shared the pain to make sure our program is not totally decimated."
"We are still going to be cut by 10 percent in 2014 but we were looking at cuts between 14 percent and 23 percent," Peebles said. "Some of our offices probably would not have survived a 23 percent cut."
David Patton, executive director and attorney-in-chief of the Federal Defenders of New York, said he has not heard of any attorneys planning to turn down work because of the cutbacks.
There are about 200 attorneys overall on the appointed counsel panels for both the Eastern and Southern districts.
Patton said he worries that if the rates stay low, it could ultimately mean attracting a lesser caliber of attorneys than the "highly experienced" current panel members.
"This is the sort of thing that time will tell, in terms of what impact it has," he said." I think over the long run, it's sure to have an impact. The fact is, even the current rate is well below the market rates. Our lawyers on the CJA panel do this work because they believe in it. But they need to earn a living,"
Lawyers who get a substantial portion of their income from appointed work will face a "stark decision" on whether to accept future appointments, said Wilford.
"We have to realize our criminal justice system is broken and cutting payment to defense attorneys is not going to help it," he said.