Part A | Part B | Part C

Guide to Judiciary Policies and Procedures - Volume VII
Chapter II - Appointment and Payment of Counsel

Part A. Eligibility for Representation Under the Act

2.01 District Plans

1. Each district court, with the approval of the judicial council, is required to have a plan for furnishing representation for any person financially unable to obtain adequate representation. A copy of a "Model Criminal Justice Act Plan" is included as Appendix G.
   
   
   1. Representation shall be provided for any financially eligible person who:
      
      
      1. is charged with a felony or with a Class A misdemeanor;
         
         
      2. is a juvenile alleged to have committed an act of juvenile delinquency as defined in section 5031 of title 18, U.S.C. (see 18 U.S.C. § 5034 with regard to appointment of counsel; for appointment of a guardian ad litem, see paragraph 3.14);
         
         
      3. is charged with a violation of probation;
         
         
      4. is under arrest, when such representation is required by law;
         
         
      5. is entitled to appointment of counsel in parole proceedings; [The reference to representation at parole proceedings was deleted from the Criminal Justice Act in accordance with the November 1, 1987 repeal of chapter 311 of title 18 United States Code. However, the savings provisions of the Sentencing Reform Act of 1984, as amended by the Judicial Improvements Act of 1990, state that existing law pertaining to parole will remain effective for ten years after November 1, 1987 with regard to persons specified in the savings provisions, and certain laws relating to parole will remain effective until the expiration of the sentence received by other persons specified in the savings provisions. This includes laws governing the right to counsel in parole proceedings.];
         
         
      6. is charged with a violation of supervised release or faces modification, reduction, or enlargement of a condition, or  extension or revocation of a term of supervised release;
         
         
      7. is subject to a mental condition hearing under chapter 313 of title 18, U.S.C. (see paragraphs 2.13 F and 2.22 B(2)(vi)(f), and Appendix H);
         
         
      8. is in custody as a material witness;
         
         
      9. is entitled to appointment of counsel under the sixth amendment to the Constitution, or faces loss of liberty in a case and federal law requires the appointment of counsel. This provision obviates the need for future amendments to the Criminal Justice Act each time the right to counsel may be extended to new situations by judicial decision or federal statutes. It also eliminates any doubt as to the application of the Act with respect to appointment of counsel for patients pursuant to title III of the Narcotic Addict Rehabilitation Act of 1966 (Ch. 2, title 42, U.S.C.) or for juveniles pursuant to the Federal Juvenile Delinquency Act (Ch. 403, title 18, U.S.C.);
         
         
      10. is seeking to set aside or vacate a death sentence in proceedings under section 2254 or 2255 of title 28, U. S.C.; and
          
          
      11. is entitled to appointment of counsel in connection with prisoner transfer proceedings under section 4109 of title 18, U.S.C.
          
          
   2. Whenever the United States magistrate judge or the court determines that the interests of justice so require, representation may be provided for any financially eligible person who:
      
      
      1. is charged with a petty offense (Class B or C misdemeanor, or an infraction) for which a sentence to confinement is authorized; or
         
         
      2. is seeking relief under section 2241, 2254, or 2255 of title 28 (but see paragraph 2.01 A(l)(x) regarding the mandatory. appointment of counsel in death penalty habeas corpus cases and paragraph 2.14 regarding the requirement for appointment of counsel for an evidentiary hearing).
         
         
2. Each plan shall include a provision for private attorneys. The plan may include, in addition to a provision for private attorneys in a substantial proportion of cases, either of the following or both:
   
   
   1. attorneys furnished by a bar association or a legal aid agency; or
      
      
   2. attorneys furnished by a defender organization established in accordance with the provisions of subsection (g) of the Act.
      
      
3. Each plan should contain a provision to the effect:

   "If at any time after appointment, counsel obtains information that a client is financially able to make payment, in whole or in part, for legal or other services in connection with his or her representation, and the source of the attorney's information is not protected as a privileged communication, counsel shall advise the court."

4. Composition and Management of the Panel of Private Attorneys (CJA Panel). The CJA Panel must be designated or approved by the court. The membership of the panel should be large enough to provide a sufficient number of experienced attorneys to handle the CJA caseload, yet small enough so that panel members receive an adequate number of appointments to maintain their proficiency in criminal defense work and thereby provide a high quality of representation. Members should serve at the pleasure of the court.

Subsection (b) of the Act provides, in part, that:

Counsel furnishing representation under the plan shall be selected from a panel of attorneys designated or approved by the court, or from a bar association, legal aid agency, or defender organization furnishing representation pursuant to the plan.

However, when the district judge presiding over the case, or the chief judge if a district judge has not yet been assigned to the case, determines that the appointment of an attorney, who is not a member of the CJA panel, is in the interest of justice, judicial economy or continuity of representation, or there is some other compelling circumstance warranting his or her appointment, the attorney may be admitted to the CJA panel pro hac vice and appointed to represent the CJA defendant. Consideration for preserving the integrity of the panel selection process suggests that such appointments should be made only in exceptional circumstances. Further, the attorney, who may or may not maintain an office in the district, should possess such qualities as would qualify him or her for admission to the district's CJA panel in the ordinary course of panel selection.

Administration and management of the CJA Panel should be centralized in one organizational element (such as the Clerk's Office or, where appropriate, the Federal Defender Organization) to ensure that counsel is appointed as expeditiously as possible, appointments are equitably distributed, and information on availability of counsel is maintained.

Appointments should be made in a manner which results in both a balanced distribution of appointments and compensation among members of the CJA Panel, and quality representation for each CJA defendant. These objectives can be accomplished by making appointments on a rotational basis, subject to the court's discretion to make exceptions due to the nature and complexity of the case, an attorney's experience, and geographical considerations.

A copy of a "Model Plan for the Composition, Administration, and Management of the Panel of Private Attorneys under the Criminal Justice Act" is included as an appendix to the "Model Criminal Justice Act Plan" in Appendix G, beginning on page G-16.

5. Cases or proceedings which are not covered by or compensable under the Act include the following:
   
   
   1. Petty offenses (Class B or C misdemeanors or infractions), except where confinement is authorized by statute and the judge or magistrate determines that appointment of counsel is required in the interest of justice;
      
      
   2. Corporate defendant cases;
      
      
   3. Prisoners bringing civil rights actions under 42 U.S.C. § 1983. Care should be taken to ensure that a prisoner is not denied the appointment of counsel due to the mislabeling of his action as "civil rights" when the proceedings could also be considered as seeking relief under 28 U.S.C. § 2254;
      
      
   4. Civil actions to protect federal jurors' employment. The appointment and compensation of attorneys in such actions are under the authority of 28 U.S.C. § 1875, not 18 U.S.C. §3006A;
      
      
   5. Administrative deportation proceedings before the Immigration and Naturalization Service.
      
      
6. Other cases or proceedings which may be covered or compensable under the Act include, but are not limited to the following (see also paragraph 2.22 B(2)):
   
   
   1. Counsel may be appointed under the Act for a person charged with civil or criminal contempt who faces loss of liberty.
      
      
   2. Upon application of a witness before a grand jury, a court, the Congress, or a federal agency or commission which has the power to compel testimony, counsel may be appointed where there is reason to believe, either prior to or during testimony, that the witness could be subject to a criminal prosecution, a civil or criminal contempt proceeding, or face loss of liberty.
      
      
   3. Counsel may be appointed for financially eligible persons proposed by the U.S. Attorney for processing under a "pretrial diversion" program.
      
      
   4. Counsel may be appointed for persons held for international extradition under chapter 209, title 18, United States Code.
      
      
   5. Representation may be furnished for financially eligible persons in "ancillary matters appropriate to the proceedings" pursuant to subsection (c) of the Act.

   In determining whether a matter is ancillary to the proceedings, the court should consider whether the matter, or the issues of law or fact in the matter, arose from, or are the same as or closely related to, the facts and circumstances surrounding the principal criminal charge.

   In determining whether representation in an ancillary matter is appropriate to the proceedings, the court should consider whether such representation is reasonably necessary to accomplish, inter alia one of the following objectives:
   
   

   1. to protect a Constitutional right;
      
      
   2. to contribute in some significant way to the defense of the principal criminal charge;
      
      
   3. to aid in preparation for the trial or disposition of the principal criminal charge;
      
      
   4. to enforce the terms of a plea agreement in the principal criminal charge;
      
      
   5. to preserve the claim of the CJA client to an interest in real or personal property subject to a civil forfeiture proceeding pursuant to 21 U.S.C. §881, 19 U.S.C. §1602 or similar statutes, which property, if recovered by the CJA client, may be considered for reimbursement under subsection (f) of the Act and paragraph 2.04 of these Guidelines; or
      
      
   6. to effectuate the return of real or personal property belonging to the CJA client which may be subject to a motion for return of property pursuant to Fed. R. Crim. P. 41(e), which property, if recovered by the CJA client, may be considered for reimbursement under subsection (f) of the Act and paragraph 2.04 of these Guidelines.
      
      

   The scope of representation in the ancillary matter should extend only to the part of the ancillary matter that relates to the principal criminal charge and to the correlative objective sought to be achieved in providing the representation (e.g., a CJA defendant in a criminal stock fraud case should be represented by CJA counsel at the defendant's deposition in a parallel civil fraud action for the limited purpose of advising him concerning his Fifth Amendment rights.)

   Representation in an ancillary matter shall be compensable as part of the representation in the principal matter for which counsel has been appointed and shall not be considered a separate appointment for which a separate compensation maximum would be applicable under paragraph 2.22 B of these Guidelines. A private panel attorney's appointed under the Act may obtain, through an ex parte application to the court, a preliminary determination that the representation to be provided in an ancillary matter is appropriate to the principal criminal proceeding and compensable under subsection (c) of the Act and this guideline. However, failure to obtain such a preliminary determination shall not bar the court from approving compensation for representation in an ancillary matter provided that the services and compensation related thereto are justified in a memorandum submitted by the attorney to the court at the conclusion of the principal criminal matter and the presiding judicial officer finds that such representation was appropriate.

2.02 Criminal Justice Act Forms.

The Judicial Conference of the United States, at its meeting in January 1965, approved the recommendation of its Committee to Implement the Criminal Justice Act of 1964, that every district incorporate in its plan a requirement that the standard forms, approved by the Conference, be used. (Copies of the pertinent forms are included in Appendix A.)

2.03 Fact Finding.

1. A person financially eligible for representation should be provided with counsel as soon as feasible after being taken into custody, when first appearing before a federal judge or magistrate, when formally charged, or when otherwise entitled to counsel under the Act, whichever occurs earliest. The determination of eligibility for representation under the Criminal Justice Act is a judicial function to be performed by a federal judge or magistrate after making appropriate inquiries concerning the person's financial condition.
   
   
2. Unless it will result in undue delay, factfinding concerning the person's eligibility for appointment of counsel should be completed prior to the person's first appearance in court. Other officers or employees of the court (i.e., clerk, deputy clerk, or Pretrial Services Officer) may be designated by the court to obtain or verify the facts upon which such determination is to be made. Relevant information bearing on the person's financial eligibility should be reflected on CJA Form 23 and the form shall be completed and executed before a judicial officer or employee. Employees of law enforcement agencies or United States attorney offices should not participate in the completion of the CJA Form 23 or seek to obtain information from a person requesting the appointment of counsel concerning his or her eligibility.
   
   
3. The person seeking appointment of counsel has the responsibility of providing the court with sufficient and accurate information upon which the court can make an eligibility determination. The prosecution and other interested entities may present to the court information concerning the person's eligibility, but the judicial inquiry into financial eligibility shall not be utilized as a forum to discover whether the person has assets subject to forfeiture, or the ability to pay a fine, make restitution, or compensate another person pursuant to the Victim/Witness Protection Act or other purposes not related to the appointment of counsel. Such determinations, if appropriate, shall be made at other stages of the proceedings in which the person seeking counsel is a party.

2.04 Standards for Eligibility.

A person is "financially unable to obtain counsel" within the meaning of subsection (b) of the Act if his net financial resources and income are insufficient to enable him to obtain qualified counsel. In determining whether such insufficiency exists, consideration should be given to (a) the cost of providing the person and his dependents with the necessities of life, and (b) the cost of the defendant's bail bond if financial conditions are imposed, or the amount of the case deposit defendant is required to make to secure his release on bond.

Any doubts as to a person's eligibility should be resolved in his favor; erroneous determinations of eligibility may be corrected at a later time. At the time of determining eligibility, the judge or magistrate should inform the person of the penalties for making a false statement, and of his obligation to inform the court and his attorney of any change in his financial status. Prior to sentencing, the court should consider pertinent information contained in the presentence report, the court's intention with respect to fines and restitution, and all other available data bearing on the individual's financial condition in order to make a final determination concerning whether the individual then has funds available to pay for some or all of the costs of representation. At the time of sentencing, in appropriate circumstances, it should order the individual to reimburse the CJA appropriation for such costs. (See paragraph 2.22 E). Future earnings should not be considered or subject to a reimbursement order, however, other income or after-acquired assets which will be received within one hundred eighty days after the date of the court's reimbursement order may be available as a source of reimbursement.

2.05 Partial Eligibility.

If a person's net financial resources and income anticipated prior to trial are in excess of the amount needed to provide him and his dependents with the necessities of life and to provide the defendant's release on bond, but are insufficient to pay fully for retained counsel, the judicial officer should find the person eligible for the appointment of counsel under the Act and should direct him to pay the available excess funds to the Clerk of the Court at the time of such appointment or from time to time thereafter. Such funds shall be held subject to the provisions of subsection (f). The judicial officer may increase or decrease the amount of such payments, and impose such other conditions from time to time as may be appropriate. With respect to the disposition of such funds, refer to paragraph 2.22 E of these Guidelines.

2.06 Family Resources.

The initial determination of eligibility should be made without regard to the financial ability of the person's family unless his family indicates willingness and financial ability to retain counsel promptly. At or following the appointment of counsel, the judicial officer may inquire into the financial situation of the person's spouse (or parents, if he is a juvenile) and if such spouse or parents indicate their willingness to pay all or part of the costs of counsel, the judicial officer may direct deposit or reimbursement.

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