Updated at 5:10 p.m.
Depending on which side of John Marshall Memorial Park in downtown Washington criminal defense lawyers practice, the budget cuts known as sequestration could mean a pinch to the bottom line at the end of the summer—or nothing at all.
Private lawyers who are paid under the Criminal Justice Act to represent indigent defendants in the U.S. District Court for the District of Columbia could go for weeks without pay this summer. The word down the street at the District of Columbia Superior Court has been cheerier. Court officials don't expect to cut CJA attorney pay, with the caveat that circumstances could change if, for instance, crime rates suddenly skyrocketed.
As officials in both courts grapple with the effects of sequestration between now and the end of the federal fiscal year on September 30, members of the CJA panels say they're waiting for official word.
"We're unsure about what's going to happen," said solo practitioner John Machado, a member of CJA panels in both courts. He said the uncertainty hadn't affected his practice, however. "We have an obligation with all our clients,” Machado said. “We're not in any way not trying to do the work we're supposed to do."
If the federal courts do suspend payments, Machado said he might look into taking more Superior Court work to make up the difference, but he wasn't concerned. "I've lived through worse storms," he said, referring to a period in the late 1990s when payments to CJA lawyers in Superior Court were suspended for several months.
There are around 100 lawyers who serve on the CJA panel for the D.C. federal trial court and around 250 lawyers on the panel for Superior Court. A number of lawyers, such as Machado, serve on both panels.
Under sequestration, non-defense agencies must cut their fiscal year 2013 budgets by five percent. The defender services budget for the Administrative Office of the U.S. Courts, which pays for CJA lawyers as well as federal public defender offices, went from a projected $1.037 billion to $988 million under sequestration, according to the Administrative Office. Any suspension of CJA payments would apply to lawyers across the country; the payments would be processed when the 2014 fiscal year begins October 1.
Testifying before Congress in late March, U.S. Court of Appeals Judge Julia Gibbons of the Sixth Circuit, chair of the Judicial Conference's Committee on the Budget, said they were estimating that payments to CJA lawyers could be delayed for close to three weeks. The Executive Committee of the Judicial Conference—the body that will decide on a spending plan—met today and discussed the defender services budget, but did not reach a decision on a plan, according to the administrative office.
U.S. District Judge Catherine Blake of Maryland, chair of the Judicial Conference's defender services committee, declined to comment on what proposals were on the table. "We are trying to include in the discussion of the best way to handle this crisis both panel attorneys and federal defender attorneys," she said. "There's ongoing dialogue."
U.S. District Chief Judge Royce Lamberth in Washington said a proposal to suspend payments for as much as six weeks had been discussed. Lawyers compete to secure a spot on the panel, but Lamberth said he was worried that payment suspensions and budget uncertainty going into the next fiscal year might scare off lawyers interested in serving. "We don't want to lose them," he said.
Most members of the CJA panel for the D.C. federal court handle a mix of CJA work and retained clients, said local solo practitioner Pleasant Brodnax III, who serves as the representative for the local federal CJA panel. Although panel members were not looking forward to cuts, he said, they also didn't want the public defender's office take any more hits. The federal public defender's office in Washington is planning to furlough employees for 27 days before the end of the fiscal year, according to Federal Public Defender A.J. Kramer.
"I know my panel does not want to see staff laid off and other attorneys furloughed in A.J.'s office, because it’s a human toll and it could affect the quality of representation," Brodnax said.
With budget estimates for 2014 and 2015 looking grim, Jeffrey "Chip" Frensley, the chief CJA panel representative to the U.S. courts and a Nashville, Tenn.-based attorney, said he hoped the administrative office would stay away from cutting CJA rates. For non-death penalty cases, CJA lawyers in federal court earn $125 per hour.
"With rates already lower than authorized statutory amount, and significantly lower than what you'd charge in privately retained cases, those things are all things that suggest there's not a lot of support for advocating for a reduced rate," Frensley said.
Unlike the D.C. federal court, which is bound to the sequestration plan for the federal court system nationwide, the federally-funded local courts system has control over its plan for coping with the cuts. The $55 million defender services budget, which doesn't cover the local public defender service, faces about $3 million in cuts. The Public Defender Service for the District of Columbia, which is also federally funded, is facing about $2 million in cuts.
Via email, Chief Judge Eric Washington of the District of Columbia Court of Appeals said officials didn't expect sequestration to "negatively impact" CJA payments, citing the city's lower crime rates and better forecasting by the court. The court uses flat fees to pay lawyers in certain cases, for example, which Washington has said enabled the court to better predict expenses. "However, our confidence could change if the variables change, i.e. there is a substantial increase in serious crime," he said.
In its initial budget request, the local court system asked for $50 million for defender services in fiscal year 2013, meaning that even under sequestration, Congress appropriated more money than court officials requested.
Local solo practitioner Betty Ballester, president of the Superior Court Trial Lawyers' Association, said she hadn't heard any official word on how CJA lawyers practicing in Superior Court might be affected, but she wasn't concerned.
In recent years, she said, "our money has been pretty good in terms of having enough to pay us out of the pot we get paid from." Ballester said that most panel attorneys handle a mix of CJA and retained work; CJA lawyers in Superior Court can't earn more than $135,000 annually from court-appointed work, and she said very few members ever come close to that amount.
"Obviously I don't want our program to lose any money because I think ultimately it's going to hurt our clients, their defense," she said. "But at this point, I think everyone's not panicking, acting responsibly, and I hope it continues that way."