US court-appointed defence lawyers working without pay amid Trump government funding crisis
This kicks off a three-month delay in paying the lawyers and their related service providers for constitutionally mandated legal work. This crisis has prompted new fears that these lawyers, known as panel attorneys, could turn down new cases. It would leave defendants, even those facing death, without ample representation.
Stakeholders voice concern
Judge Amy St. Eve, chair of the Judicial Conference's Budget Committee, said, 'The right of a criminal defendant to effective counsel regardless of the defendant's economic status is guaranteed under our Constitution and the Criminal Justice Act. That fundamental right is at risk because we ran out of funding on July 3 to pay the private practice attorneys appointed to represent federal defendants.'
'These attorneys will not be paid until October 1 for the work they have done and for the work that we continue to ask them to do, unless the Judiciary receives supplemental funding from Congress before then,' she added.
St. Eve, in a recent congressional testimony, noted, "These disruptions in panel attorney payments negatively affect our panel attorneys, potentially reducing their willingness to accept future appointments and jeopardising the ability to provide necessary and timely representation.'
Meanwhile, Judge Cathy Seibel, chair of the Judicial Conference's Defender Services Committee, observed that some attorneys 'continue to work but are not getting paid, which obviously is a tremendous hardship, especially for small firms and solo practitioners.'
Impact on the legal system and defendants
While payments to panel attorneys have been suspended during earlier congressional budget crises as well, it has rarely been for more than a few weeks in a fiscal year.
Over 90% defendants in federal criminal cases have court-appointed lawyers, as they can't afford their own. Federal defenders' organisations handle about 60% of publicly financed cases across the nation. The other 40% is assigned to private defence lawyers who agree to serve on a court's Criminal Justice Act (CJA) panel.
During this crisis, the Judiciary has been in contact with congressional appropriators about the need for $116 million in supplemental funding, in order to mitigate payment deferrals and avert the continuing situation.
'The continuing resolution to fund the government for fiscal year 2025 passed by Congress in March froze all Judicial Branch funding at the FY 2024 level, which resulted in panel attorney funding running out unusually early. Because of the hard freeze funding level, funding is not available within other Judiciary accounts to address the funding gap,' the Federal Courts of the US explained.
There are over 12,000 private panel attorneys across the USA who accept CJA assignments during the year. Around 85% work for small firms or are solo practitioners, so a delay in payment will hit their purses and impact their work.
This funding freeze is also having an impact on specialists employed by the defence to present their clients' cases effectively. These include investigators, expert witnesses, or even interpreters. No money means many of these posts may go vacant for three months.
In the District of North Dakota, several long-tenured CJA attorneys have resigned from the panel recently, and many federal courts are worried that trials will have to be postponed, which means defendants may be locked up longer than expected, and in some instances, criminal cases might be compromised if requirements under the Speedy Trial Act aren't met.
Given that federal defender organisations are understaffed and overworked, with a hiring freeze for 17 of the last 24 months, as Congress tightens its purse strings, they cannot pick up the slack either.
How much are panel attorneys paid?
Panel attorneys make $175 an hour in non-capital cases, and a maximum of $223 an hour in capital cases, which is significantly lower than market rates.
This amount includes both the attorney's compensation and office overhead, which encompasses rent, supplies, and equipment.
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