Page 100 - Ad Hoc Report June 2018
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3.5.5 Overhead
Even if an attorney does not live and work in a high-cost area, increasing overhead costs diminish the effective rate paid by the CJA. Neither the Judicial Conference nor Congress has ever evaluated how these increasing costs affect the value of the CJA rate. Overhead costs create a financial hardship for CJA counsel and discourage the acceptance of cases by capable private defense attorneys.210 Solo practitioners must pay costs for maintaining their practices, including malpractice insurance, staff, computer equipment, IT services, electronic legal research services, telephones, rent, and other miscellaneous overhead items.211
Testimony reflected that overhead costs amounted to as much as $70 – 100 of the $132 hourly rate. Recent survey data confirms that increasing overhead costs have substantially eroded the net income of CJA attorneys. The 2015 Survey of Criminal Justice Act Panel Attorney District Representatives and Individual Panel Attorneys, commissioned by the Administrative Office of the U.S. Courts, revealed that the average overhead per billable hour in non-capital cases was $85.212 Thus, in 2015 CJA attorneys would have earned an effective hourly rate of $42 ($127 minus $85) at then current rates.
The same survey illustrates the significant gap between panel attorneys and privately retained counsel. While panel attorneys netted a mere $42 per hour, retained attorneys netted more than $150 more per hour.213 With overhead consum- ing so much of the CJA rate, the rate is inadequate. As the CJA representative from the Central District of California explained:
We’re only three lawyers, I asked my office manager, “What’s our overhead per hour attorney work?” Afterwards, I almost regretted that I asked because it was so depressing when I got the answer. It was almost $100 an hour....I would say in Los Angeles, our overhead is probably about $70 an hour. In my law firm it’s higher, but I’d say for a sole practitioner, which most of the panel is, it’s probably about $70 an hour. Once you subtract out what people pay on their taxes, they’re probably left with about $30 an hour.214
3.5.6 How Rate Affects Representation
Other lawyers who work in the federal criminal justice system are effectively paid a much higher rate. Federal defenders and U.S. Attorneys do not bear the cost of
210 Inthe2005Gleesonreport,nearly40percentofCJApanelattorneysreporteddecliningcases based on the low level of compensation. pg. 15-16.
211 KenGomany,CJAPanelAtty.,N.D.Ala.,PublicHearing—Birmingham,Ala.,Panel4,Tr.,at19. 212 WestatSurvey.SeeAppendixC:SurveyDataConsidered.
213 MicheleA.Harmonetal.,2015SurveyofCriminalJusticeActPanelAttorneyDistrict Representatives and Individual Panel Attorneys 45 (Westat 2015).
214 MarilynBednarski,CJADist.Rep.,C.D.Cal.,PublicHearing—SanFrancisco,Cal.,Panel6,Tr.,at9–10.
No recommendation presented herein represents 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 the policy of the Judicial Conference of the United States unless approved by the Conference itself.

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