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Economics of CJA Representations Costly to Attorneys
Private attorneys who take on Criminal Justice Act (CJA) representations earn $100 per hour in non-capital cases. But a 2005 survey estimates their average hourly overhead at $64 per hour. This means panel attorneys net an average of just $36 per hour on CJA representations before taxes—assuming average overhead costs have not increased since 2005.
When that net rate is compared to the 2005 net national average of $148 per hour for non-CJA private criminal cases, it is not surprising that solo or small firm attorneys may think twice before accepting a CJA appointment.
Last month, in fiscal year 2009 appropriations hearings on the Hill, the Judiciary asked Congress to increase the non-capital panel attorney rate to $118 per hour from the current $100 per hour.
Under the CJA, a panel attorney is assigned by the court to represent a financially-eligible person in federal court. And while CJA attorneys received a rate increase in fiscal year 2008 from $94 to $100 an hour, Judge Julia Gibbons, chair of the Judicial Conference Budget Committee, told congressional appropriators that a more significant increase is required if the courts are to attract and retain enough qualified attorneys to accept CJA appointments.
"We believe there is a direct relationship," Gibbons said, "between the lack of qualified panel attorneys available to take CJA appointments and the significant financial difficulties panel attorneys encounter maintaining their legal practices at the current rate."
"The current pay scale is only enough to cover attorney costs," said David Markus, a private practitioner and panel attorney in Miami, Florida. "It's difficult to provide effective assistance of counsel when you're barely able to pay your bills."
Markus takes approximately six CJA cases per year. "That's just about enough to keep up with federal practice, but not enough to dominate my own private practice," he said. "It's just not economical to do this. Some practitioners won't take CJA cases anymore. If a CJA representation goes into a long trial, a solo attorney may have to sacrifice his or her entire practice."
Jeffery "Chip" Frensley, an attorney in Nashville, Tennessee takes three to five CJA clients per year. Approximately 50 lawyers are members of the local CJA panel and appointment of cases is made on a rotational basis.
"The level of compensation impacts the level of representation," said Frensley. "If an attorney takes a CJA case, it means they lose the opportunity to take other cases at higher rates. Finally, the realization of how little they make will keep some attorneys off the panel."
Frensley calls CJA work "a calling" in that there is a substantial pro bono element associated with the current hourly rate. He's also well aware that, since May 1, 2002, the Department of Justice has paid $200 per hour to retain private counsel to represent current or former federal employees in civil, congressional, or criminal proceedings.
"When compared to CJA rates, it is an equity issue," he adds.
Jami Ferrara is one of 125 panel attorneys in the Southern District of California. She charges non-CJA clients $250 per hour and had three to four such retained cases last year. Most of her cases, though, are CJA representations.
"The volume of federal prosecution is very high in this district," Ferrara said. "Last year we had over 4,000 cases." She is handling about 30 CJA cases at the moment. This number contrasts with the 2005 survey results showing that more than 85 percent of panel attorneys represent 10 or fewer CJA clients a year.
With so many cases, according to Ferrara, there's an incentive to stay current and be an effective practitioner. "If you want quality representation, you need people who know what they're doing," she said. But Ferrara also notes that a solo practitioner can't survive on what a CJA attorney is paid, especially if there's a lengthy trial.
Things have improved since her early days when rates were $75 per hour and she couldn't afford WestLaw, she shared books with colleagues, and cut costs anywhere she could. Even today, she pays some expenses herself in order to provide effective counsel.
"If my clients need clothes to appear in court, I go to Target and buy clothes. That's out of my pocket," she said.
What is a reasonable rate for CJA attorneys? What rate would assure that every defendant facing federal criminal charges is properly and effectively represented as required by the Sixth Amendment?
The Criminal Justice Act authorizes the Judicial Conference to approve cost-of-living adjustments (COLAs) to panel attorney hourly rates. If the annual COLAs had been funded each year by Congress, the maximum hourly rate for non-capital cases would be $133 in fiscal year 2008, and would have reached a projected $136 and $140 in fiscal years 2009 and 2010, respectively. Recognizing fiscal constraints, the Judicial Conference has approved a two-year strategy to obtain the maximum non-capital panel attorney rate, with a request for $118 in fiscal year 2009, and a plan to request the balance in fiscal year 2010.
"CJA rates will never equal private attorney rates," says Markus, "and we don't expect that they should. Most of us do this to give back, because we believe in indigent defense. But the low rates make it more difficult to get qualified attorneys."