A Primer on Criminal Justice Act Appointment in the Second Circuit Court of Appeals
The Criminal Justice Act (“CJA”) provides federal funds for attorneys, experts and services necessary for the adequate representation of indigent criminal defendants. The CJA requires each Court to implement its own CJA plan to facilitate the representation of CJA clients. The focus of this article is CJA appointments in the Second Circuit Court of Appeals. However, every Federal Court (both District Courts and Courts of Appeals) has its own CJA plan, which should be consulted prior to applying for or accepting a CJA appointment. The following is a summary of the pertinent portions of the Plan. The full Plan can be found here.
Appointment of Counsel
Attorneys who wish to serve as a CJA appointee in Second Circuit must fill out an application (available at the Clerk’s Office), as well as submit a resumé for the review of an Attorney Advisory Group. In order to be considered for CJA Appointment, an attorney must be a member in good standing of the bar of the Court, must maintain an office within the Circuit and must have demonstrated experience in Title 18 and the habeas corpus provisions of Title 28 of the United States Code, the Federal Rules of Appellate Procedure, the Federal Rules of Criminal Procedure, the Federal Rules of Evidence, the Local Rules and Internal Operating Procedures of the Court of Appeals for the Second Circuit, and the United States Sentencing Guidelines.
CJA Panel Members serve a term of up to three years and may reapply to be a CJA panel attorney upon the expiration of the term. The Court may remove CJA panel attorneys at any time at its sole discretion. Refusal of three appointments over the membership term may result in a CJA panel attorney’s removal. The suspension or disbarment of a CJA panel attorney from any state or federal court will result in an automatic suspension and possible removal from the CJA panel.
A criminal defendant may request that he/she be represented by a CJA attorney. If that request is made for the first time on appeal, the Second Circuit will make a determination as to whether the criminal defendant is able to afford counsel. If the Court determines that the defendant is indigent, it will appoint a CJA attorney from the CJA Panel List. The appointment of CJA counsel is at the sole discretion of the Court, and a CJA client is not permitted to select his/her attorney from the Panel List.
The Court retains the right to re-examine the financial status of a CJA defendant throughout the pendency of the CJA representation. Moreover, CJA attorneys are obligated to report any information indicating that the CJA Client or someone on the client’s behalf can make whole or partial payment for their defense.
Duties of CJA Counsel
As with all attorney-client relationships, CJA attorneys are required to zealously advocate for their clients and abide by all applicable rules of professional conduct. However, there are certain requirements that the Second Circuit enumerated within the Plan. CJA attorneys should be mindful to abide by these requirements.
Trial CJA counsel must advise their client of his/her right to appeal, and the obligation of filing a timely Notice of Appeal. Trial CJA counsel must also file the Notice of Appeal and any relevant transcript, if the client desires to move forward with the appeal.
In the Second Circuit, it is expected that CJA attorneys file an Oral Argument statement in compliance with local rules and attend oral argument, unless excused by the Court. The CJA attorney is responsible for furnishing the CJA client with all papers filed in the matter, including opinions and Orders of the Court.
If the Second Circuit’s decision is adverse to the CJA client, the CJA attorney must advise the client in writing of the Client’s post-decision rights as well as inform the client of the likelihood of success on the merits of such relief. Even if the CJA client wishes to seek post-appeal relief, if the CJA attorney reasonably believes that such relief has no likelihood of success, the attorney may file a motion in the Second Circuit to be relieved. The attorney must file the Motion and serve the CJA client with a copy within ten days of the filing of the adverse decision. In the event that the CJA client wishes to proceed with a Motion for Rehearing or a Motion for Rehearing en banc, the CJA attorney must include a Motion for Extension of Time with the Motion for Relief.
Relief of Counsel
It is presumed that CJA trial counsel will remain counsel for the CJA client’s appeal. CJA Trial Counsel wishing to be relieved from representing a CJA client on appeal must file a motion seeking relief, and must state the grounds in support of the motion. The motion must be served upon the CJA client. CJA counsel is required to continue representation of a CJA client unless or until the Court grants the motion for relief.
After appeal, if the case is remanded, it is presumed that the CJA appellate attorney will remain counsel, unless and until relieved for good cause. A CJA attorney’s practice being limited to appellate work, or the attorney’s offices being a significant distance from the District Court, are generally considered adequate grounds for relief on remand.
Payment of CJA Counsel
In order to be paid for CJA services and expenses, a CJA attorney must submit a CJA voucher. A claim for attorney’s fees, expenses and services shall be submitted no later than 45 days after a mandate is issued or the case is remanded. The maximum hourly rate that a CJA attorney can bill is $125.00 per hour. The maximum compensation a CJA attorney can recover is $5,200.00 for cases originating outside the Southern and Eastern Districts of New York, and $7,000.00 for cases originating within those districts. In cases of complex representation, the CJA attorney can petition the Court for excess payment, upon a Circuit Court Judge’s certification of the complex nature of the representation, and the Chief Judge’s approval of the excess payment.
Reimbursement of Expenses
The following expenses connected with CJA representation are paid by the US Government:
- Travel and Transportation – reimbursement is limited to the most economical means available and will only be paid for expenses actually incurred. A copy of the ticket/bill/receipt must be submitted with the CJA voucher. Travel time to and from Court may be claimed if the round trip is over an hour.
- Automobile Transportation – The total mileage cannot exceed the fare for authorized economy air travel (i.e. if it is less expensive to fly, CJA attorneys will be paid at the rate of an economy plane ticket). Mileage will be reimbursed according to current government authorized rates.
- Meals and Lodging – There is no fixed per diem, but CJA attorneys should be guided by current limitations for travel and sustenance for federal employees (CALL CLERK). Receipts for meals and lodging must be submitted with a CJA Voucher. Attorneys traveling for oral argument will receive a maximum one and one-half days of meals and lodging absent a Court order.
- Photocopying – The actual costs for reasonable printing services for appendices and briefs will be paid if a copy of the bill is submitted (thus, AppealTech’s services in assembling, printing, filing and serving your appendix are usually of no charge to you or your client!). In-house copies costs are recoverable at a maximum rate of $0.20 per page.
- Courier Services – Only reimbursable in situations where items cannot be mailed. It is presumed that the brief, appendix or motions should be prepared early enough so as to permit the use of regular mail.
- Miscellaneous – CJA panel attorneys will be reimbursed reasonable rates for postage, telephone calls and brief supplies but must submit supporting documentation for single items over $50.00.
CJA representation at the appellate level gives practitioners the opportunity to provide indigent criminal defendants with the right to counsel afforded to them by the Sixth Amendment. As with all criminal appeals, CJA representation requires a proficiency in federal criminal law and procedure. Moreover, CJA appellate representation requires clear, concise and convincing brief writing, and persuasive oral argument skills. AppealTech is happy to assist CJA appointed attorneys with formatting and procedural matters and specializes in preparing criminal appendices and briefs, the cost of which is reimbursable under the CJA.
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