Suggested Good Practices for Panel Attorney Programs in the U.S. Courts of Appeals
Excerpted from Good Practices for Panel Attorney Programs in the U.S. Courts of Appeals, Vera Institute of Justice (January 2006)
Continuity of counsel
- The circuit rules that govern the appointment, withdrawal, and/or substitution of counsel for criminal appeals should provide for a flexible approach, rather than mandating that the CJA counsel appointed at the district level continue to represent the defendant on and through the appeal.
- Although it is important to recognize the possible benefits of continuity, there should be significant deference to the position of trial counsel regarding whether, in each matter, continuity is (1) in the best interests of the client and (2) consistent with counsel's professional skills and obligations.
- Courts of appeals should develop mechanisms for addressing motions to withdraw by CJA trial counsel that are made in the district court at the conclusion of the case. Such mechanisms must assure that the defendant is continuously represented.
Use of Appellate panels
- Appointments should be made from a circuit panel, or multiple panels in very large circuits, of well-qualified CJA practitioners.
- In conjunction with the circuit CJA panels, courts of appeals should encourage the establishment of, and reliance on, appellate specialist positions within one or more defender organizations within the circuit.
- Courts of appeals should encourage training opportunities for new members of CJA appellate panels and should consider whether to mandate training as a qualification for membership on the panel.
Determining panel size
- Courts of appeals should periodically adjust appellate panel size by finding the appropriate balance between attorney skills and appeals court appointment needs (including the number of cold-record appeals), thereby maximizing quality and promoting efficiency.
Panel selection and review
- The selection of appellate CJA panel members should be overseen by a committee primarily or entirely composed of criminal defense attorneys, including experienced appellate practitioners.
- The CJA panel committee should apply a rigorous selection process based on established but flexible criteria.
- The committee should conduct a periodic review of panel members to assure their continued qualification for, and commitment to, appellate practice. In circuits in which a rigorous selection process has not been the norm, existing panel members should be required to reapply or otherwise undergo a quality review.
- Appellate CJA panel attorneys should be assigned to cases on a rotating basis. However, the appointment system also should be flexible to allow for appointments that pair complex cases or challenging defendants with qualified attorneys with the appropriate skills.
- Courts of appeals should develop a process — such as through appointments administered by a CJA supervising attorney or a federal defender office that also oversees panel selection and review — for evaluating the special skills of attorneys and the needs of the case and of the defendant.
- In court rules or in advice-to-counsel letters sent with each appointment, courts of appeals should provide information reflecting pertinent Judicial Conference Guidelines and the court's procedure for voucher review.
- A single individual or coordinated team — well-grounded in the practical and legal challenges of appellate defense practice — should administer the attorney compensation process. Consideration should be given to the use of a CJA supervising attorney or a federal defender office in the circuit.
- Courts of appeals should explore limiting the nature and extent of the judicial role in reviewing compensation requests and streamlining the second-level review of excess compensation claims for both trial and appeals court representations.
- Attorneys should be notified of proposed voucher reductions and the reasons for them and should be provided with an opportunity to explain why reconsideration is appropriate.
- Courts of appeals should make it a priority to process compensation requests as expeditiously as possible.