Memo says US judges may compel unpaid defense work amid shutdown

The U.S. Attorney's Office in Los Angeles has advised federal judges, at the request of the court, that they may compel lawyers to represent indigent defendants without being paid during a lapse in Criminal Justice Act funding, according to a newly issued memo.

The guidance, dated Oct. 27, also mentioned judicial power to imprison attorneys who do not comply with such orders, referring to Powell v. Alabama, 287 U.S. 45, 73 (1932).

The memo shared with the Federal Public Defenders Office for the Central District of California on Wednesday says courts retain the authority to appoint unpaid counsel and, in limited cases, may assign a single attorney to represent multiple defendants at initial hearings. These measures would be aimed at keeping the criminal justice system functioning despite the funding shortfall.

"The U.S. Attorney's Office respectfully advises (1) that the court has the authority to appoint counsel for defendants unable to afford criminal defense lawyers--whether or not CJA funds are immediately available to compensate those lawyers--and (2) that the court also has the authority to specially appoint a single attorney for the limited purpose of representing multiple defendants at the initial appearance and bail hearing stage of the case, in the absence of an actual conflict, pending permanent appointment," the unsigned memo read.

Ciaran McAvoy, chief spokesman for the U.S. attorney's office in Los Angeles, commented in an email on Thursday.

"Our office submitted a research memorandum 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," he said. "The CJA panel is a function of the court, not our office. Any questions should be directed to the court itself."

Media representatives for the Central District court did not respond to phoned or emailed requests for comment by press time on Thursday.

Asked by the Daily Journal whether a judge can order a private attorney to represent an indigent criminal defendant, State Bar Public Information Officer Rick Coca emailed last Wednesday, "The State Bar is not aware of a statute or rule of professional conduct that would provide authority to direct a private attorney to accept representation of any particular client or type of client."

The memo has drawn a divided reaction among attorneys in the Central District, with some attorneys sharply criticizing it and others contending that the office is making the best of the bad situation caused by the shutdown.

Dominique M. Caamano, a former assistant U.S. attorney in the Central District who now practices with Kibler Fowler & Cave LLP in Los Angeles, said the office is "in a tough position."

"I think they struck the right balance with respect to the answer as to the conflict issue," Caamano said in a phone call Thursday. "They looked at the law. There has not been an issue for a limited purpose to have the same lawyer represent multiple defendants at an initial appearance."

As for compensation for attorneys, Caamano said the office is "trying to balance the shutdown with what needs to continue to be a Sixth Amendment right to counsel," noting that similar instances in the past have ended in attorneys being retroactively paid once funds become available.

"We're in an unprecedented time, so this is obviously a difficult situation," she said. "They really took a thoughtful and careful approach, because ultimately prosecutors are held to a higher standard than other lawyers, under the rules of professional responsibility."

Caamano continued, "The court appears to be seeking guidance on what the prosecutorial perspective is as to objectionability to the court allowing for efficiencies in defense representations during these trying times."

Sean E. Macias of Macias Counsel Inc. in Glendale said attorneys may feel an obligation to contribute because professionals in other fields have been asked to do so during the federal shutdown.

"We can't be above the grind," he said in a phone call Thursday. "You have all the air traffic controllers, TSA, everyone's putting in their time and still doing their job to make sure everybody's safe and their rights are always protected. And so, the lawyers have to do the same."

Still, Macias said the memo had troubling implications not just for attorneys, but for their staff as well.

"We come in with a whole package. It's our whole office. It's not just me," Macias said. "When I go out and when I'm in front of a judge, it's my whole staff that has helped me prepare, get all the documents, get ready. If I have the witnesses or what not, if I have a hearing to do, they all assist. So, it's not only me putting my time in. It's my whole staff.

"At the end of the day, if it was for a better cause than this political shoving match, I think it would be more digestible," he continued.

Other attorneys were less charitable in their criticism of the memo.

"While ICE rampages throughout the Central District looking for undocumented immigrants to charge, the government works to cut their defense counsel off at the knees and farcically asserts that criminal defendants can and should mount a defense without actually having the funding to do so. This is a complete mockery and perversion of justice," sole practitioner John D. Hanusz of Pasadena said in an email on Wednesday.

He also took aim at the memo's reference to jailing attorneys who refuse to serve, derived from a 1965 9th Circuit decision in United States v. Dillon, 346 F.2d 633, 635 (9th Cir. 1965).

"The memorandum's unambiguous endorsement of 'imprisonment for contempt' as 'a proper remedy for an attorney's refusal' to work for free is chilling, Orwellian, and un-American. It is yet another example of the administration's disdain and contempt for justice and the rule of law," he said.

The memo addressed to magistrate judges states at the top it is from Assistant U.S. Attorneys Alexander B. Schwab, acting chief of the criminal division; Frances S. Lewis, chief of the General Crimes Section; and Alexander P. Robbins, acting chief of the Criminal Appeals Section.

Under the heading, "This Court Can Require Members of Its Bar to Serve as Representatives of Indigent Defendants Without Compensation," the memo stated, "Attorneys have long been appointed to serve without compensation, and doing so presents no constitutional problem. The Ninth Circuit has rejected Takings Clause challenges to occasional compelled service as a condition of bar membership. See Scheehle v. Justs. of Supreme Ct. of Ariz., 508 F.3d 887, 892-93 (9th Cir. 2007) ("in accepting admission to the Arizona Bar, and in practicing before the Maricopa Superior Court, Scheehle voluntarily became an officer of the court with the concomitant obligation to render service to the court when requested"); see also Fam. Div. Trial Laws. v. Moultrie, 725 F.2d 695, 705 (D.C. Cir. 1984) (similarly rejecting a takings challenge where the overall burden on the private bar was not "unreasonable")."

Regarding punishment for attorneys who do not comply, the memo said, "The power to appoint counsel for indigent defendants long predates the CJA and is distinct from the CJA's compensation procedures. See Dillon, 346 F.2d at 636-68 (appendix) (laying out much of the history of court appointment, including Chief Judge Hale's opinion that imprisonment for Appointment of Counsel Page 3 contempt would be a proper remedy for an attorney's refusal to serve). "Attorneys are officers of the court, and are bound to render service when required by such an appointment." Powell v. Alabama, 287 U.S. 45, 73 (1932).

Sole practitioner Meghan A. Blanco of Laguna Niguel said the court's "authority to order uncompensated labor simply is not there."

"What the court can do is recognize that representation is essential and either ensure the resources to do the job exist, or, if they don't, recognize that they will need to begin dismissing or staying proceedings," Blanco said in an email on Thursday. "Anything else risks violating both the Constitution and the ethics rules that govern our licenses."

Blanco further contended that asking an attorney to stand in for multiple people in a multi-defendant case "at once creates direct conflicts of interest."

"Detention arguments, charging posture, cooperation issues, and even simple questions of role often diverge among defendants immediately," she said. "The rules of professional conduct are extremely clear: if I have divided loyalties or even the appearance of divided loyalties, I cannot ethically represent the client. So, forcing attorneys into that position is not just unwise -- it is unethical."

Sole practitioner Anthony M. Solis noted that the Criminal Justice Act requires appointed attorneys to be paid.

"The suggestion that the court appoint attorneys in federal cases - which are often complex and require certain expertise - is absurd," Solis said in an email on Thursday. "The attorneys that joined the CJA panel did so with the understanding they were being paid for their work as the law requires. Attorneys outside the system would find such work, if uncompensated, a substantial burden for any size practice."

Solis also predicted problems with assigning one attorney to represent multiple co-defendants.

"Many times, conflicts are not readily apparent at an initial appearance when you don't have all the evidence in front of you and you can't possibly understand all the relationships or connections among multiple defendants," he said.

Solis further noted that he has "already accepted more CJA cases than I can reasonably handle.

"I've done my best to take on my share of the work, but accepting more at this point will create an ethical problem since I cannot accept more work than I can reasonably work on, particularly when I have to pay my own bills and ensure that I have sufficient time to work on cases that do earn me revenue," he said.

"The USAO has no business providing any guidance whatsoever to the court on how defense counsel should be appointed," Solis continued. "We have an adversarial system. Defense attorneys don't opine how the government should staff its cases. The government has no standing to say how the court appoints counsel to represent indigent criminal defendants."

The memo echoes a similar statement by Sujung Kim, research manager at the San Francisco's Public Defender's office, who told Judge Harry Dorfman this week that he has the authority to order private attorneys to represent indigent criminal clients, drawing similar criticism from attorneys.

Randall Miller, founding partner at Miller Waxler LLP, who has represented judges and attorneys for more than 40 years, said in a phone interview that he did not think the court had the power to compel Bar Association of San Francisco lawyer appointments to represent indigents in criminal cases. 

"I do not think the court (any court) has the inherent power (under its duties of supervision/control of its own docket, or the like) to compel a private entity to mandatorily provide attorneys to staff the cases. That would be an overstep by the court, and an ultra vires act," Miller said.

Heather Rosing, founding partner of San Diego based Rosing Pott & Strohbehn, also not involved in the San Francisco case, commented, "The Bar Association has no way of compelling attorneys to serve on its panel, and certainly no way of compelling attorneys who do not feel qualified in criminal practice to serve on its panel. Even if it was permissible for the judge to issue an order, it could be a hollow order since it is trying to make a Bar Association do something that it simply doesn't have the ability to do."