Memo urging unpaid CJA appointments draws constitutional, practical fire

Legal experts say a memo from the U.S. attorney's office in Los Angeles, asserting that federal judges can order attorneys to represent indigent defendants without pay during a lapse in Criminal Justice Act funding, raises a host of constitutional and practical problems.

The U.S. attorney's office, responding to a request from the court for the legal opinion, said federal judges have authority to appoint counsel for defendants unable to afford criminal defense lawyers even if funds are not immediately available. The memo said the judges can also appoint a single attorney for the limited purpose of representing multiple defendants at the initial appearance and bail hearing stage.

Legal experts said Central District judges appear to be trying to address an immediate crisis, not due to the government shutdown but because criminal defense panel attorneys in private practice--who represent indigent defendants when there is a conflict with the federal public defender's office--have not been paid since July 3.

Pamela R. Metzger, a professor at the Dedman School of Law at Southern Methodist University, said any attempt to force lawyers to represent criminal defendants without pay will run into problems, in part because such an order does not apply to investigators, paralegals and other law firm support staff.

Metzger said in a phone interview Friday that attorneys can also raise Fifth Amendment takings clause objections. "The federal government cannot steal from its citizens," she said. "You cannot compel people to serve the state when they don't want to."

In New Mexico, 52 Criminal Justice Act panel attorneys and contractors wrote a letter to the federal courts on Wednesday saying they will no longer accept new appointments "due to the ongoing CJA funding crisis."

"Taking cases under these circumstances has proven to be detrimental not only to our CJA panel members' and contractors' financial viability, but also to our current CJA clients," Albuquerque attorney Ryan J. Villa wrote.

Bruce Green, a professor at Fordham University School of Law, wrote in an email that the U.S. attorney's office is correct that "there is a long history prior to the early 1960s of federal courts appointing lawyers to represent criminal defendants without compensation on an occasional basis."

"They have inherent authority to do so, within limits," he continued. "But it's worth noting that Congress adopted the Criminal Justice Act because studies showed that the uncompensated court-appointed lawyers were not doing a very good job."

"If federal judges start appointing lawyers without experience in criminal cases, there's no reason to think they will do better in 2025," Green added.

Metzger said the 1964 law creating the federal program, which has roughly 12,000 private attorneys nationwide helping to represent defendants in federal court, has been very effective.

"You don't want people who don't want to be doing this work representing people going through the biggest crisis of their lives," she added.

Green and Metzger both said the second recommendation by the U.S. attorney's office--allowing a single attorney to represent multiple defendants at an initial hearing--is a bad idea. Green wrote that "lawyers need to begin investigating the case at the earliest opportunity. A defendant needs an unconflicted lawyer from the start."

Chief Judge Dolly M. Gee and Chief U.S. Magistrate Judge Karen L. Stevenson of the Central District, which requested the memo, did not respond to emails seeking comment Friday about the court's plans.

Chief Judge Richard Seeborg of the Northern District of California said in an email that his court has not requested a similar memo from the U.S. attorney's office in San Francisco. The chief judges of California's two other districts could not be reached for comment.

Metzger said the CJA funding crisis is likely to get worse, even if the federal government shutdown ends. "We are in a constitutional crisis of public defender funding," she said.