Gideon at A Public Defender brings us a New York Times report of a study about the effectiveness and cost of federal defenders versus CJA panel attorneys.  This is a very touchy subject for lawyers.

For anyone unfamiliar with the players, here’s the cast of characters:  Federal defenders are the legal aid of our federal criminal courts.  They are salaried attorneys who defend the indigent on a federal level.  CJA panel attorneys are, theoretically, private criminal defense attorneys who join a panel of attorneys to be assigned to represent indigent defendants for a fixed hourly fee to fill in the gaps when there are multiple defendants in a case, thereby creating a conflict of interest that would prevent federal defenders from representing more than one defendant in a case.  Since many federal cases are conspiracies, it is common that there are multiple defendants in a case, and federal defenders can only represent one.  Therefore, CJA lawyers pick up the rest of the defendants who are unable to afford (or unwilling to pay) private counsel.

Federal defenders are dedicated, trained attorneys who spend their days toiling in the well of District Court’s across the nation.  They choose to be there, some hoping to gain federal trial experience that can later be parlayed into a lucrative private practice, and some truly dedicated to giving meaning to Gideon v. Wainwright.

CJA lawyers, on the other hand, apply to be on the panel and agree to accept an hourly fee in compensation for their services.  The fees vary somewhat from district to district, and are further restricted by caps.  The attorneys must submit a voucher to the court for approval, lest some wage claim more time than he should).  These lawyers, together with their state counterparts (and they are usually one and the same group), are also referred to as “assigned counsel.”

The concept was that private lawyers with a few hours to kill, and for whom the promise of meaningful representation to the indigent held meaning, would come forward to fill in the gap in criminal defense of the poor.  The practice…well, it’s not always so clear.  Before treading further, let me add that many CJA lawyers are exceptionally qualified and provide outstanding representation.  What follows here is a gross generalization, and by no means is intended to tar all with one stroke.  The good ones know who they are, and they know I’m not talking about them.  Moreover, the good ones aren’t too thrilled to be sitting next to the slackers either.

Initially, the nature of the beast is not necessarily what federal courts might expect.  Private criminal defense attorneys represent people accused of crimes.  Sometimes, those people show up in federal courts, but more often in state and even local courts.  They go where their clients take them, because that’s the nature of the business. 

This gives rise to two problems.  First, their experienced tends to be more diffused.  They need to work in various courts with differing laws, procedures, cultures and attitudes.  Shifting between these courts is not always easy.  Moreover, they can go for prolonged periods of time without getting a case in a particular court, so that they may well have experience there, and experience in general, they are not a regular, knowing the quirks and idiosynchracies of the locals.  This can make even an experienced lawyer feel like an outsider.

The scheme behind CJA was that private lawyers would have busy private practices, making the big bucks in their regular work and supplementing their time (in those free hours) with a good deed to fulfill their goal of helping the poor.  It hasn’t always worked quite that way.  For a lot of lawyers trying to break into criminal defense, they realize quickly that hanging out a shingle doesn’t guarantee that wealthy criminal defendants will come flocking to their door.  Eight hours of free time a day is enough to depress anyone.  And so they join the panel.

The problem is that panel work, usually on both the state (what’s called 18b in New York) and federal level, becomes their bread and butter.  Indeed, for many, it is there entire livelihood.  Without the panel, they would be playing computer solitaire all day long.  And so panel work is their practice.  And the expectation of panel work is critical to their daily existence.

Now this was never the way it was planned.  If these lawyers are entirely dependent on panel work for a living, they are effectively the same as federal defenders, but for a few significant problems.  First, they don’t get the level of training and support.  Second, they have no one supervising them to make sure that they are doing their job well and (ahem) billing truthfully.

As to the billing issue, I am not suggesting that there is a glut of lying, cheating lawyers overbilling CJA.  While there have been some scandals, the courts have done an admirable job of keeping the lid on things.  But there is a bit of fudging going on from time to time, often in response to the perception of inadequate hourly rates and ridiculously low caps.  Sometimes, an hour from one case gets put on a voucher in another.  Hey, who can scrutinize vouchers that closely?  And they really did the work, so no harm, no foul, right?

Personally, I haven’t done panel work since 1983.  If I take on an indigent case, I do so pro bono.  Filling out vouchers is just not my thing.  But I’ve been paying close attention to these problems for years, largely because they have been on front burner of criminal defense bar associations as a result of fee issues.  The screaming about low fees and low caps is a by product of attorneys becoming way too dependent on panel work to sustain their practices, and their families’ desire to eat.  Every day.

There’s nothing about the study that I find surprising.  But there’s little about the study that I find helpful, either.  It’s a lousy system that ill serves everyone.  But I do feel strongly that the system has long been too dependent on panel lawyers, and even more strongly that panel lawyers have been too dependent on the system.  This is all about indigent defense, not full employment for lawyers. 

If lawyers want to call themselves private, then their focus should be honing their skills so that retained clients want to hire them.  There is no god-given right to run a private practice financed by the state or federal government.  And there is definitely no right to expect a steady flow of revenue from the panels, sufficient to make the lease payments on that Mercedes.  (I’m sure I’ll here from someone who will completely miss the point of this hyperbolic example by informing me that they drive a Honda.  Keep it to yourself.  That is NOT the point.) 

Like so many things in life, the viability of this system depends in large measure on the good will and integrity of its participants.  To a large measure, the criminal defense bar fulfills its promise to indigent defendants day in and day out.  But there remain too many who think that the only reason poor people get arrested is so they can get an assignment.  This was never the idea.