Nov 7 (Reuters) – Federal prosecutors in Los Angeles have provided judges a memo advising that they have the power to compel any of the hundreds of members of their federal court’s bar to represent indigent defendants without pay amid a funding shortfall that has led to a shortage of private attorneys available to take on new cases.
The U.S. Attorney’s Office for the Central District of California drafted the Oct. 31 memo, opens new tab at the request of the federal court amid a funding crisis that has been exacerbated by the ongoing U.S. government shutdown.
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The memo acknowledged that compelling lawyers to represent defendants would only be proper if they can provide competent representation and have sufficient experience and time to prepare a defense.
About 12,000 private lawyers across the U.S. serve on court-managed panels that provide counsel to defendants who cannot afford to hire an attorney when federal public defenders are not available to represent them.
The program that compensates these lawyers under the Criminal Justice Act ran out of money in early July, and the shutdown — now in its 38th day — has resulted in Congress not authorizing any new funding.
CJA lawyers handle about 40% of the publicly financed federal legal defense work, while public defenders handle the rest, the judiciary says. About 85% of CJA lawyers are sole practitioners or work for small law firms, making them particularly financially vulnerable when payment is delayed.
The lack of funding has prompted concerns about courts’ ability to provide representation to indigent criminal defendants as guaranteed by the U.S. Supreme Court in its landmark 1963 ruling Gideon v. Wainwright, as some private attorneys have stopped taking on such work without pay.
The memo noted that in addition to the CJA panel attorneys, “there are (at least) hundreds of qualified practicing members of the Central District of California bar, all of whom are duty-bound to accept a limited special appointment if ordered to do so by this Court.”
Ciaran McEvoy, a spokesperson for the U.S. Attorney’s Office, said it submitted the memo “at the direction of the court and made clear the memo could be shared with any members of the defense bar at the court’s discretion.”
The district court’s executive did not immediately respond to a request for comment. The memo was first reported by the Los Angeles Daily Journal.
In the U.S. District Court for the Central District of California, which covers Los Angeles, the pool of panel attorneys available to take indigent cases has fallen from the usual 100 to fewer than 20, according to Anthony Solis, a lawyer who serves as that district’s CJA panel representative.
Concerns about the availability of lawyers to perform such work prompted the court to reach out to the local U.S. Attorney’s Office for advice on whether it had the authority in this situation to appoint counsel without pay.
The memo, signed by among others the acting chief of the office’s criminal division, Alexander Schwab, answered yes, saying the power to appoint counsel for indigent defendants long predates the CJA’s enactment in 1964 and covers all members of its bar, not just lawyers who belong to its CJA panel.
Prosecutors, whose cases could be jeopardized if a defendant were deprived of their constitutional right to counsel, also advised that the judges had the additional power to temporarily appoint a single lawyer to represent multiple defendants in the same case to handle initial hearings until conflict-free, permanent counsel could be secured.
Solis in an email said that so far, the court has not compelled any lawyers to represent defendants without compensation. He called the idea of appointing attorneys without pay or access to ancillary services “absurd.”
“The attorneys that joined the CJA panel did so with the understanding they were being paid for their work as the law requires,” he said.
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Reporting by Nate Raymond in Boston
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