Page 149 - Ad Hoc Report June 2018
P. 149

 the impression that their billing is “excessive,” and/or avoid delays in payment. Because there is no accurate means to measure these self-cuts, the Committee was left to rely on the surveys discussed above and on testimony about the practice.
In the Committee’s survey, attorneys were asked to indicate how often they sought full compensation. Of the 2,384 responses, approximately 40 percent of attorneys reported they “rarely” or “never” submitted a bill for all time invested in a case. Just 17 percent reported they “always” bill for all work undertaken.
The practice of self-cutting is encouraged in a number of ways, not all nefar- ious. For instance, one federal defender whose office reviews vouchers told the Committee that if a voucher is a couple hundred dollars over the case maximum, he will call the attorney to ask if the attorney is willing to take a voluntary cut to bring the voucher below the maximum. As the defender explained to the Committee, “[T]he process of going to the circuit just takes a lot of time. Oftentimes [panel attor- neys] would prefer to go ahead and just take the cap rather than wait on the money. It’s not used as a threat at all, it’s just a courtesy.”447
Similarly, a judge explained that in his district they did not get many vouch- ers over the limit, and when they did, his practice was to write the attorney a letter and say, “I’m going to have to send this up for circuit review unless you just want
to take the statutory maximum. Most of the time the lawyer will say, ‘I’ll take the statutory maximum.’”448 The judge was trying to spare the lawyer the inevitable delay in payment associated with circuit court review but in doing so reinforced the practice of self-cutting.
Circuit court review of vouchers is addressed in more detail below in Section 6, but it is worth noting here that the Committee found that a considerable number of attorneys self-cut their vouchers to remain below the case maximums that would trigger circuit review. Depending on the circuit, this may be done to expedite pay- ment or to prevent the circuit from cutting the voucher.
In one circuit with a known practice of significantly cutting CJA vouchers even when the vouchers have been approved at the district level, district court judges encourage attorneys to cut their vouchers to stay within the case maxi- mum. And judges themselves may “strategically” cut vouchers in an effort to avoid more drastic cuts at the circuit level. Although this is being done to support the lawyers, it has created pressure on them to cut their own vouchers or “accept” cuts that are made for their benefit.449
Other times the encouragement of self-cutting is more problematic. Until recently, one district maintained a local policy that no panel attorney, no matter the client or case, could be paid more than $3,500 for any felony case that resulted
447 ParksNolanSmall,FPD,D.S.C.,PublicHearing—Miami,Fla.,Panel1,Tr.at39.
448 JudgeLeonHolmesE.D.Ark.,PublicHearing—Birmingham,Ala.,Panel1,Tr.at25.
449 NeilFulton,FPD,D.N.D.&D.S.D.,PublicHearing—Minneapolis,Minn.,Panel2,Tr.at20; Alexander Reichert, CJA Panel Atty., D.N.D., Public Hearing—Minneapolis, Minn., Panel 5, Tr. at 25-26.
No recommendation presented herein represents
the policy of the Judicial Conference of the United 2 0 1 7 R E P O R T O F T H E A D H O C C O M M I T T E E T O R E V I E W T H E C R I M I N A L J U S T I C E A C T 105
 States unless approved by the Conference itself.
 




















































































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