These attorneys defend clients in need; their pay is being frozen for months
A number of attorneys representing clients who cannot afford legal representation in federal cases are set to have their pay halted for more than two months because of budget shortfalls in the congressional spending bill passed this year, court officials say, alarming lawyers and judges.
The pay freeze will affect private-sector defense attorneys hired by courts under the Criminal Justice Act (CJA) to represent clients who are financially in need or indigent. Payments to the attorneys are expected to be suspended from late July until October, according to the federal judiciary, notices sent to lawyers and interviews. The lawyers are expected to receive the delayed payments in October.
Delays in payments could have consequences for defendants, because attorneys may ask to postpone cases to focus on other work or they may be less inclined to take on CJA clients, lawyers said.
Attorneys say an interruption in payments could cause substantial difficulties for the lawyers, who typically operate in small firms or by themselves and cannot easily navigate a months-long delay in income.
Not getting paid for months “can be devastating for a small firm,” said Jessica N. Carmichael, an attorney at a firm in Alexandria, Virginia, who works on CJA cases in Virginia and D.C. “We have monthly bills we have to pay that are not going to stop just because we’re not getting paid on cases.”
More than 12,000 private attorneys take on CJA work nationwide each year, complementing federal defenders representing indigent people facing criminal cases, according to the Administrative Office of the U.S. Courts, which oversees the federal judiciary’s management.
The Administrative Office has attributed the pay suspensions to a spending bill passed by Congress in March.
A House subcommittee hearing Wednesday on the federal judiciary touched on the planned pay suspension, along with other funding issues. The congressional spending bill gave the judicial branch $8.6 billion, nearly $400 million less than the courts had sought, according to the Administrative Office.
In prepared remarks submitted to the subcommittee, Judge Amy J. St. Eve said the spending bill kept judiciary funding levels flat, even as “some critical categories of expenses have continued to rise.” She expressed consternation at the pay freeze for CJA attorneys.
“Those payments are meant to compensate attorneys and related service providers for constitutionally-required legal work that has already been performed, but the payments will not be made because we simply cannot afford to make them,” said St. Eve, a judge with the U.S. Court of Appeals for the 7th Circuit who chairs the Judicial Conference’s budget committee.
St. Eve said the pay freeze could also have other consequences for CJA attorneys, “potentially reducing their willingness to accept future appointments and jeopardizing the ability to provide necessary and timely representation” for clients who need it.
Leslie Abrams Gardner, chief judge of the U.S. District Court for the Middle District of Georgia, wrote to CJA attorneys that she recognized “the detrimental effect” the suspension of payments would have, calling it “very disappointing.”
Lisa Monet Wayne, executive director of the National Association of Criminal Defense Lawyers, denounced the delayed payments, saying they represented “a broken contract with committed legal professionals who uphold the right to counsel.”
“This isn’t just an inconvenience; it’s a crisis that threatens to cripple our ability to provide effective public defense, leading to backlogs, attorney shortages, and ultimately, a denial of due process and fair outcomes at a time when the federal government is increasing prosecutions,” she said in a statement.
CJA attorneys take on about 35 to 40 percent of cases in which someone needs counsel appointed, said Melody Brannon, the federal public defender in Kansas and chair of an advisory group for defenders and CJA attorneys. The CJA attorneys will submit vouchers for their work.
The expected months-long pay freeze is not the only pay interruption looming this summer for the lawyers. CJA attorneys have also been told to expect a shorter pause in payments in June while the judiciary’s financial system is updated.
Carmichael, the attorney in Alexandria, said she is typically working on several CJA cases at any given time. The extended pay freeze can create issues for other elements of working on cases, including traveling to see clients, she said.
“You’re talking about putting some significant expenses on you or your law firm, and then you have to wait months to get reimbursed for that, and that’s also a hardship,” she said.
Kresta Daly, an attorney in California who works on CJA cases in the Sacramento area and Alaska, has a small firm with one partner who handles civil issues. Daly said she mostly focuses on CJA cases and has been doing that work for more than two decades. Losing income for a time requires significant preparation, she said.
“Not getting paid for three months definitely takes a lot of planning, to make sure you’ve got the house payment covered,” she said. “We’re all independent contractors. So I pay my own health insurance, right? It’s thousands of dollars you have to set aside.”
She also expressed concerns about how the pay freeze could affect recruiting other attorneys to the field, because some might decide instead to focus on work they know will pay.
“There has to be a steady stream of young lawyers entering the profession, so someday they can be gray-haired lawyers defending death-penalty cases, saving people’s lives,” she said. “And if we can’t attract these people, the system long term will break down.”
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