Payday Delayed For Attorneys For Indigent
Government shutdown worsens existing pay lag for lawyers appointed to represent federal criminal defendants
Lawyers on the government payroll aren't the only attorneys who have felt the pinch of the partial federal government shutdown. Private practice lawyers appointed by the courts to represent indigent criminal defendants also have been squeezed.
Appointed lawyers' woes actually started before Republicans' and Democrats' pitched battle over the budget: The federal judiciary had decided to temporarily lower the lawyers' rates and delay some payments as a means of coping with budget difficulties. But the shutdown, which appeared to be ending on Wednesday after 16 days, nonetheless exacerbated a payment delay initiated in September.
As the Daily Report went to press late Wednesday afternoon, voting hadn't been completed in Congress on a reported deal to end the shutdown.
Many Justice Department lawyers were sent home when the shutdown began on Oct. 1, although the DOJ directed its offices that criminal litigation should continue as long as the courts remain open.
The federal judiciary also said it had money to remain open for all business through Oct. 15, then issued an update saying it hoped there would be money available through the end of this week. Federal public defender offices work from the judiciary's pool of cash.
So criminal litigation continued, even though the prosecutors didn't know when they'd be paid. Some lawyers who handle appointed work have been owed by the government since even before the shutdown began.
The federal government pays those lawyers—known as "CJA panel" attorneys because they are paid pursuant to the Criminal Justice Act—an hourly rate to represent indigent criminal defendants. In the Northern and Middle districts in Georgia, they handle cases in which the federal public defender has a conflict of interest, usually because clients are co-defendants, or, particularly in the Middle District, when a public defender isn't available for some other reason. In the Southern District, there is no institutional public defender, so all indigent defendants are represented by private lawyers.
Although a judge can order interim payments to be made during a particularly complex case, usually lawyers are not paid until their work on it is complete—for example, when the defendant is sentenced. "The average case could take a year," said Atlanta lawyer Leigh Finlayson, who acts as CJA panel representative for the Northern District of Georgia, providing information and training to panel lawyers.
These days, it's taking even longer for CJA lawyers to get their money. The Judicial Conference of the United States froze payments to CJA panel attorneys for the last three weeks of fiscal year 2013, which ended on Sept. 30. Payments were supposed to resume on Oct. 1, but the shutdown meant the freeze would continue until Congress restored appropriations.
According to Finlayson, panel lawyers were warned last spring that payment deferrals would be coming. They learned over the summer the fiscal year 2013 deferrals would be for three weeks, he said.