A comment on Thursday’s post concerning the Miske case raised a couple of good questions.

Curious if the Court requires proof that a person is unable to pay their attorney fees…and also curious if the public ends up paying, does the Attorney get the same market rate or is it capped by Federal statute?

The post mentioned that the federal courts provide counsel to those who can’t afford to pay for their own defense through a network of attorneys preselected as available and qualified. I dug around online for more background, which wasn’t hard to find.

Here’s a concise statement from a federal court website:

In every type of proceeding where appointment of counsel is authorized under 18 U.S.C. § 3006A(a) and related statutes, the United States magistrate judge or the court shall advise the person of their right to be represented by counsel and that counsel will be appointed if the person is financially unable to obtain counsel. Unless the person waives representation by counsel, the United States magistrate judge or the court, if satisfied after appropriate inquiry that the person is financially unable to obtain counsel, shall appoint counsel to represent the individual….

Counsel must be appointed if the person seeking representation is “financially unable to obtain counsel.” 18 U.S.C. §3006A(b). (While courts often use “indigency” as a shorthand expression to describe financial eligibility, indigency is not the standard for appointing counsel under the Criminal Justice Act.) In determining whether a person is “financially unable to obtain counsel,” consideration should be given to the cost of providing the person and his or her dependents with the necessities of life, the cost of securing pretrial release, asset encumbrance, and the likely cost of retained counsel. The initial determination of eligibility must be made without regard to the financial ability of the person’s family to retain counsel, unless their family indicates willingness and ability to do so promptly. Any doubts about a person’s eligibility should be resolved in the person’s favor; erroneous determinations of eligibility may be corrected at a later time. For additional guidance, see the Guide to Judiciary Policy, Volume 7A, Guidelines for Administering the CJA and Related Statutes (CJA Guidelines).

There are two different pay scales, one for capital cases, and the other for non-capital cases.

During 2021, the maximum rate for attorneys working on capital cases is $197 per hour. For non-capital cases, the maximum rate is $155. Both amounts include both attorney fees and office overhead. Both are probably far below the “market” rate for experience defense attorneys.

In addition, there are case maximums that limit total panel attorney compensation for categories of representation (for example, $11,500 for felonies, $3,300 for misdemeanors, and $8,200 for appeals). These maximums may be exceeded when higher amounts are certified by the district judge, or circuit judge if the representation is at the court of appeals, as necessary to provide fair compensation and the chief judge of the circuit approves.

For more background, here’s a description of the federal court system’s “Defender Services,” including the attorneys were serve as federal public defenders, and those who are serving on Criminal Justice Act panels where they are paid by the hour to represent indigent defendants.

It includes an estimate that federal defenders typically handle 60-70% of cases, with CJA panel attorneys picking up the rest.