3 months without pay, federal indigency lawyers pushed to the brink

There have been no paychecks since July 3 for conflict panel attorneys who fill in when federal defenders are unavailable--and with the government shut down, no money is in sight.

As a result, the criminal justice system is suffering, lawyers and a magistrate judge said on Wednesday. The crisis is so bad that even former prosecutors are volunteering to help.

The roster of available panel attorneys in the Central District of California is reduced to about 30 from the usual 100 or so, according to Anthony M. Solis, a veteran criminal defense lawyer who represents attorneys on the alternate defender panel for the district.

"If a federal budget were in place, we could use next year's appropriation to pay this year's bills, but with the shutdown there is no money at all," Solis said. "Prosecutions don't stop, but if you don't fund the defense, you can't have due process."

Solis, who runs a two-attorney criminal defense firm in Calabasas in addition to his panel work, predicted the day is near when judges will be forced to dismiss cases for lack of an available defense lawyer. "As it is, judges are having to kick cases for days, and at some point, that becomes a due process violation," he said.

Over the past two weeks, the crunch has reached the stage where former prosecutors like E. Martin Estrada, until January the U.S. Attorney for the Central District, have offered aid. Estrada and former federal prosecutor Mark A. Byrne have reached out to their network of ex-prosecutors to solicit volunteers to do defense work.

"We asked attorneys who are able to pitch in," Estrada, a partner at Munger, Tolles & Olson LLP said, adding he was speaking privately, not for the firm. "We hope all experienced criminal counsel will help."

Byrne, of Byrne & Nixon LLP, maintains a database of some 600 former federal prosecutors. "I sent out a letter, and we've had a lot of calls," he said. "We feel the need to help out the courts. Some firms could use this to get trial experience for associates. I'll do a case or two as I have time."

Chief Magistrate Judge Karen L. Stevenson of Los Angeles oversees 24 other Central District magistrates who preside over the initial court appearances of criminal defendants. She said the judges are finding the assignment of counsel increasingly difficult in conflict situations for those who can't afford attorneys.

"It's a very serious situation," Stevenson said. "These attorneys haven't been paid, they can't afford to pay their staff, and they are critical to the administration of justice. There is a Sixth Amendment guarantee of the right to counsel, and a lack of available attorneys could put future prosecutions potentially in jeopardy."

In San Diego, the alternate attorney representative, Adam F. Doyle of Doyle Defense, said the Southern District is at a tipping point. "Of about 95 lawyers on the panel, about 30 are currently not taking cases and 10 or so have gone on temporary or permanent hiatus," he said. 

"Many of our clients speak Spanish, and it's increasingly difficult to find interpreters, because we can't pay them. And that's the equivalent of not having an attorney."

The upshot: "If there's no defense attorney available, the government or the court will have to dismiss cases, and we're rapidly approaching the point where that will happen."

In the Northern District, "The impact of the funding freeze has been devastating for Criminal Justice Act (CJA) panel members and their clients," said Ellen V. Leonida of Sideman & Bancroft LLP in San Francisco, the district's alternate attorney representative. She referred to the federal law that authorizes funding for conflict defense attorneys.

"The government shutdown has further extended the period during which we are asking our panel members to work without compensation and without access to the resources they need to provide constitutionally mandated representation," she said.

Federal defenders are paid government salaries, but conflict attorneys, the private lawyers funded by the Criminal Justice Act to step in when multiple-defendant cases arise or a witness is cooperating with the government, get paid a statutory set rate after they submit vouchers. Unless the case has been approved for interim billing, payment is made only after a case is concluded. 

The $393 million available nationwide for Criminal Justice Act panel attorney payments in the 2025 budget ran out July 3. A $73 million supplemental request is pending, according to an August memo from the Administrative Office of the U.S. Courts. The request awaits attachment to a bill likely to pass. "To date, a vehicle to which to attach the supplemental request has not been identified," the memo said. 

The suspension of payments is felt beyond the attorneys themselves. It also leaves unpaid the investigators, experts, social workers, interpreters and other professionals that courts appoint to support defendants.

John D. Hanusz, a criminal defense lawyer at Hanusz Law in Los Angeles, said. "If you want a functioning criminal justice system, you have to be prepared to pay for it. No other player in the system works without compensation. Once again, the burden falls on indigent defendants."

A survey of Criminal Justice Act panel attorneys across the nation, conducted by the Association of Criminal Defense Lawyers, uncovered cries for relief.

One California attorney, unnamed in the survey, said, "It is . . . such a stinging slap in the face to be practicing in a border district with increased prosecutions for illegal entry cases, and the massive appropriations for DHS and the prosecution in the billions, but not even a small part of that is allocated to the defense."

A panel attorney in Arizona also called for help. "Under the CJA, the Sixth Amendment right to counsel exists only if there are qualified lawyers who can afford to keep showing up," emailed Jessica Valdez of Tucson. 

"I have depleted savings, taken on debt, and am now weighing whether I can remain on the panel. I imagine I am not the only one in this position."