Part A | Part B | Part C

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

Part B. Appointment of Counsel

2.10 Appointment of Counsel to Represent More Than One Individual in a Particular Case.

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 shall be entered with respect to each person. An attorney who represents joint defendants may be compensated for his services up to the statutory maximum for each person represented, unless the case involves extended or complex representation (see paragraph 2.24 of these Guidelines).

2.11 Compensation of Co-counsel.

1. Without appointment. Unless appointed in accordance with paragraphs 2.11 B or 6.01 A, co-counsel or associate attorneys may not be compensated under the Act. However, an appointed counsel may claim compensation for services furnished by a partner or associate or, with prior authorization by the court, counsel who is not a partner or associate, within the maximum compensation allowed by the Act, separately identifying the provider of each service.
   
   
2. With appointment. In an extremely difficult case where the court finds it in the interest of justice to appoint an additional attorney, each attorney is eligible to receive the maximum compensation allowable under the Act. The finding of the court that the appointment of an additional attorney in a difficult case was necessary and in the interest of justice shall appear on the Order of Appointment. (See paragraph 6.01 A for appointment of more than one attorney in capital cases.)
   
   

2.12 Continuity of Representation.

If the attorney appointed by the United States 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 magistrate judge in a misdemeanor case.

An order extending Appointment on Appeal (CJA 20) should be executed for each appellant for whom counsel was appointed by a United States district judge or magistrate judge for representation at the trial level. In a federal capital prosecution, or a proceeding pursuant to 28 U.S.C. § 2254 or 2255 challenging a death sentence, the appointment should be made on a CJA 30.

Absent special circumstances, whenever a case is transferred to another district, such as under Rules 20, 21, and 40, Federal Rules of Criminal Procedure, appointment of counsel should be made in the transferee district.

2.13 Other Appointments.

A new appointment on CJA Form 20 should be made for each person represented in the following proceedings:

1. New trial after motion, mistrial, reversal, or remand on appeal;
   
   
2. Probation revocation proceedings;
   
   
3. Appeal, including interlocutory appeals;
   
   
4. Bail appeals to a Court of Appeals;
   
   
5. Extraordinary writs;
   
   
6. Mental competency hearings pursuant to section 4243 (Hospitalization of a Person Found Not Guilty only by Reason of Insanity), 4245 (Hospitalization of an Imprisoned Person Suffering From Mental Disease or Defect), and 4246 (Hospitalization of a Person Due for Release but Suffering From Mental Disease or Defect) of title 18, United States Code. (See also paragraph 2.22 B(2)(vi)(f) and Appendix H infra.)

2.14 Appointment of Counsel in Habeas Corpus and Proceedings under Section 2255, Title 28, United States Code.

While the Rules for sections 2254 and 2255 of title 28, United States Code, mention the appointment of counsel only with regard to discovery and evidentiary hearings, the Criminal Justice Act, subsection (a)(2)(B), permits discretionary appointment at any stage of the proceedings, in the interest of justice. (See paragraph 2.01 A(2)(ii)). In addition, 21 U.S.C. §848(q)(4) requires the appointment of one or more attorneys in death penalty federal habeas corpus cases. (See paragraph 6.01 A.)

2.15 Forms for the Appointment of Counsel.

Forms for the Appointment of Counsel, together with instructions for the execution and distribution thereof, are included in Appendix A.

2.16 Waiver of Counsel.

A waiver of assigned counsel by a defendant should be in writing. If the defendant refuses to sign the waiver, the judge or magistrate should certify thereto. No standard form has been prescribed for this purpose. If an appointment of counsel has been made previously, the CJA appointment form and the waiver should be forwarded to the Administrative Office.

2.17 Standby Counsel.

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]. In some cases, however, the judge or magistrate may find it necessary to appoint "standby" counsel to be available to assist a pro se defendant in his or her 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]. The CJA, however, provides that "[u]nless the (financially eligible) person waives representation by counsel... [the court] shall appoint counsel to represent him." 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. Accordingly, 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. 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.

On the other hand, in circumstances in which appointment is made 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 shall be in the capacity of an "expert or consultant pursuant to 5 U.S.C. §3109. Accordingly, an appointment pursuant to 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 in accordance with CJA hourly rates and case compensation maximums. The Defender Services Division of the Administrative 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 pursuant to §3109 shall be terminated.

2.18 Termination of Appointment.

In any case in which appointment of counsel has been made and the court subsequently finds that the person is financially able to obtain counsel, such appointment should be terminated. (Use CJA Form 7, Appendix A)

2.19 Federal Defender Organizations.

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 paragraph 4.04 of these Guidelines).

Back to top

1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9