Page 153 - Ad Hoc Report June 2018
P. 153

 discern what attorneys didn’t do because of a concern that they wouldn’t be com- pensated for such work, or what experts weren’t retained for the same underlying reason. It is difficult to measure how often concerns about future appointments subtly shift defense strategies to keep vouchers below the case maximum. And the Committee cannot know how many quality attorneys reduced or eliminated their CJA work because of voucher cuts. But what is clear is that as a result of voucher cutting, all of these things are happening to some degree.
The Committee heard testimony from panel attorneys that stories about voucher cuts move quickly through close-knit defense communities in their dis- tricts, resulting in a chilling effect among the attorneys. “It’s not an across-the- board-problem and it doesn’t happen to everybody...[but] when it does happen it spreads through the CJA panel like wildfire because it’s a fear, it’s a perception that we have,” one panel attorney told the Committee.”461 It is the fear of investing the time and effort and then not being paid. Most attorneys accept the possibility of smaller reductions, but few can absorb reductions that equal weeks or even months of unpaid work.462 The Committee heard from many panel attorneys committed
to the work but also struggling financially. As many panel attorneys are solo prac- titioners or members of small firms, this lost revenue could threaten the viability
of their practice. Their main concern is not the low hourly rate—although that is a problem — but the voucher cuts.
One panel attorney, concerned about substantial cuts in her district and enhanced scrutiny of CJA vouchers, explained to the Committee that even though she has the duty to provide effective and zealous representation to her clients, she also has to be concerned whether someone reviewing the voucher will think she spent too much time researching an issue or meeting with her client. “I have to think about whether I’m going to get paid for something before I do it. I have to think about whether or not a district court judge reviewing this for reasonableness [will approve it].”463 In some districts, the attorneys are placed in the very difficult posi- tion of investing hours they almost surely will not be compensated for, or reducing the efforts they make on behalf of their clients. One district representative disclosed, “I know lawyers who have curtailed their research and the brief writing that they’ve done because they know they are not going to get paid past a certain point....They don’t necessarily want it to happen that way but from a business perspective and what they can invest in a case, it affects how they approach the case . . .”464 This is the reality whether it is a brief, a five-hour round-trip to the jail that the attorney will not
461 DebraDiIorio,CJAPanelAtty.,C.D.Cal.PublicHearing—SanFrancisco,Cal.,Panel3,Tr.at23.
462 DanScott,CJAPanelAtty.Dist.Rep.,D.Minn.,PublicHearing—Minneapolis,Minn.,Panel5, 17-19; Mark Windsor, CJA Panel Atty, C.D. Cal., Public Hearing—San Francisco, Cal., Panel 3, Tr. at 5, 13.
463 MarilynBednarski,CJAPanelAtty.,C.D.Cal.,CJAPanelAttyDist.Rep.,PublicHearing—San Francisco, Cal., Panel 6, Tr. at 10.
464 MelodyBrannon,FPD,D.Kan.,PublicHearing—Minneapolis,Minn.,Panel2,Tr.at21-22.
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 109
 States unless approved by the Conference itself.

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