Chapter 2, § 220: Appointment of Counsel
Guide to Judiciary Policy, Vol 7 Defender Services, Part A Guidelines for Administering the CJA and Related Statutes, Chapter 2: Appointment and Payment of Counsel
§ 220.10 Timely Appointment of Counsel
§ 220.15 Forms for the Appointment of Counsel
§ 220.18 Notification of Relationship
§ 220.20 Duration of Appointment
§ 220.25 Continuity of Representation
§ 220.30 New Appointments Following Earlier Representations
§ 220.35 Federal Defender Organizations
§ 220.40 Appointment of Counsel to Represent More Than One Individual in a Case
§ 220.45 Appointment of Counsel in Habeas Corpus and Proceedings Under 28 U.S.C. § 2255
§ 220.50 Waiver of Counsel
§ 220.55 Standby Counsel
§ 220.60 Termination of Appointment
As noted in § 210.40.10, a person financially eligible for representation should be provided with counsel as soon as feasible after being taken into custody, when first appearing before the court or U.S. magistrate judge, when formally charged, or when otherwise entitled to counsel under the CJA, whichever occurs earliest.
Forms for the appointment of counsel, together with instructions for their use, may be found on the public judiciary website.
Prior to appointment, counsel should notify the presiding judicial authority if counsel is aware that he or she is related (as the term is defined in 5 U.S.C. § 3110) to any attorney on the same representation, or any attorney being considered for appointment. If appointment of related counsel is made prior to notification, counsel should provide notification as soon as practicable.
In part, 18 U.S.C. § 3006A(c) provides that:
|A person for whom counsel is appointed shall be represented at every stage of the proceedings from his initial appearance before the U.S. magistrate judge or the court through appeal, including ancillary matters appropriate to the proceedings.|
(a) If the attorney appointed by the U.S. magistrate judge is to continue to represent the defendant in the district court, no additional appointment by the district court should be made, except on appeal from a judgment rendered by the U.S. magistrate judge in a misdemeanor case.
(b) Counsel's time and expenses involved in the preparation of a petition for a writ of certiorari are considered applicable to the case before the U.S. court of appeals and should be included on the voucher for services performed in that court.
(c) An order extending Appointment on Appeal (Form CJA 20) should be executed for each appellant for whom counsel was appointed by a U.S. district judge or magistrate judge for representation at the trial level. In a federal capital prosecution, or a proceeding under 28 U.S.C. § 2254 or § 2255 challenging a death sentence, the appointment should be made on a Form CJA 30 (Death Penalty Proceedings: Appointment of and Authority to Pay Court-Appointed Counsel).
(d) Absent special circumstances, whenever a case is transferred to another district, such as under Federal Rules of Criminal Procedure Rules 20, 21, and 40, appointment of counsel should be made in the transferee district.
A new appointment on Form CJA 20 should be made for each person represented in the following proceedings:
(a) new trial after motion, mistrial, reversal, or remand on appeal;
(b) probation revocation proceedings;
(c) appeal, including interlocutory appeals;
(d) bail appeals to a court of appeals;
(e) extraordinary writs;
(f) mental condition hearings under:
(1) 18 U.S.C. § 4243 (Hospitalization of a Person Found Not Guilty only by Reason of Insanity);
(2) 18 U.S.C. § 4245 (Hospitalization of an Imprisoned Person Suffering From Mental Disease or Defect); and
Note: The chart below explains when a mental condition hearing is considered a new appointment or part of the case in chief.
|U.S. Code Section||Type of Hearing||New Case||
Part of Case in Chief
|Motion to determine competence to stand trial.||No||Yes|
|18 U.S.C. § 4241(e)||Hearing to determine whether person temporarily hospitalized as a result of incompetence to stand trial has recovered competence.||No||Yes|
|18 U.S.C. § 4243(c)||Hearing to determine whether release of person found not guilty by reason of insanity would create substantial risk of injury to person or property.||Yes||No|
Hearing to determine whether person hospitalized following finding of not guilty by reason of insanity may be released conditionally or unconditionally.
Also hearing to modify or eliminate conditions of release.
|18 U.S.C. § 4243(g)||Hearing on revocation of conditional release imposed under § 4243(f)||Yes||No|
|18 U.S.C. § 4244(a)||Hearing to determine present mental condition of convicted defendant prior to sentencing.||No||Yes|
|18 U.S.C. § 4245(a)||Hearing to determine whether imprisoned person suffering from mental disease or defect should be hospitalized.||Yes||No|
|18 U.S.C. § 4246(a)||Hearing to determine whether a hospitalized person due for release is presently suffering from a mental disease or defect so that release would create a substantial risk of injury to persons or property.||Yes||No|
|Hearing to determine whether a person whose hospitalization was extended following a hearing under § 4246(a) may be released or conditionally released.||Yes||No|
|18 U.S.C. § 4246(f)||Hearing on revocation of conditional release imposed under § 4246(e).||Yes||No|
When cases are assigned to a federal public or community defender organization, the appointment should be made in the name of the organization (i.e., the federal public defender or community defender), rather than in the name of an individual staff attorney within the organization. See: Guide, Vol 7A, § 440.
(a) Unless good cause is shown or in the absence of a waiver on the record by the defendants, in a criminal prosecution involving more than one defendant, or where separate charges arising out of the same or similar transactions are concurrently pending against two or more defendants, separate counsel should normally be appointed for each defendant. If an attorney is appointed to represent more than one person, a separate order of appointment must be entered with respect to each person.
(b) An attorney who represents joint defendants may be compensated for services up to the statutory maximum for each person represented, unless the case involves extended or complex representation, in which case the attorney may be entitled to additional compensation above the statutory maximum rate. See: § 230.50 (Proration of Claims) and § 230.23.10(c).
While the Rules Governing Section 2254 Cases in the U.S. District Courts and the Rules Governing Section 2255 Proceedings in the U.S. District Courts mention the appointment of counsel only with regard to discovery and evidentiary hearings, the CJA in 18 U.S.C. § 3006A(a)(2)(B) permits discretionary appointment at any stage of the proceedings in the interest of justice. See: Guide, Vol 7A, § 210.20.20(a)(2). Also, 18 U.S.C. § 3599(a)(1) requires the appointment of one or more attorneys in death penalty federal habeas corpus cases. See: Guide, Vol 7A, § 620.10.
A waiver of assigned counsel by a defendant should be in writing. If the defendant refuses to sign the waiver, the court or U.S. magistrate judge should certify thereto. No standard form has been prescribed for this purpose
(a) Criminal defendants have both a constitutional and statutory right to self-representation in federal court. See: Faretta v. California, 422 U.S. 806 (1975); 28 U.S.C. § 1654.
(b) In some cases, however, the court or U.S. magistrate judge may find it necessary to appoint "standby" counsel to be available to assist a pro se defendant in that defendant's defense and also to protect the integrity and ensure the continuity of the judicial proceedings. (See: McKaskle v. Wiggins, 465 U.S. 168 (1984); Faretta, supra.).
(a) The CJA provides that "[u]nless the [financially eligible] person waives representation by counsel. . .[the court] shall appoint counsel to represent him." 18 U.S.C. § 3006A(b).
(b) While the court has inherent authority to appoint standby counsel, such appointments may not be made and counsel may not be compensated under the CJA unless the defendant qualifies for appointed counsel and representation is actually rendered by counsel. Therefore, if a financially eligible pro se defendant agrees to be represented, at least in part, by standby counsel, compensation may be provided under the CJA.
(c) Similarly, if at any time during the course of the proceedings the services of standby counsel are accepted by a financially eligible pro se defendant, a nunc pro tunc CJA appointment order should be effected and counsel may be compensated under the CJA.
(a) In circumstances in which standby counsel is appointed under the court's inherent authority, and counsel serves exclusively on behalf of the court to protect the integrity and continuity of the proceedings, and does not represent the defendant, any compensation to be paid counsel must be in the capacity of an "expert or consultant" under 5 U.S.C. § 3109.
(b) Therefore, an appointment under this section may be made regardless of whether the defendant is financially able to obtain adequate representation. In such cases, compensation will be determined by the judicial officer according to CJA hourly rates and case compensation maximums.
(c) The Administrative Office of the U.S. Courts’ (AO) Defender Services Office should be consulted regarding appointment and payment procedures. If, during the course of the proceedings, a pro se defendant who is financially able to retain counsel elects to do so, the court's appointment of an attorney under 18 U.S.C. § 3006A(c) may be terminated.
In any case in which appointment of counsel has been made under the CJA and the court subsequently finds that the person is financially able to obtain counsel, such appointment should be terminated using Form CJA 7 (Order Terminating Appointment of Counsel and/or Authorization for Distribution of Available Private Funds).
Appx 2A: Model Plan for Implementation and Administration of the Criminal Justice Act (pdf)(word)
Appx 2C: Procedures for Interim Payments to Counsel In Non-Death Penalty Cases (pdf)(word)
Appx 2D: Procedures for Interim Payments to Counsel in Death Penalty Cases (pdf)(word)
Last substantive revision (Transmittal 07-011) February 6, 2019
Last revised (minor technical changes) February 27, 2019