UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
PLAN FOR IMPLEMENTATION AND ADMINISTRATION
OF THE CRIMINAL JUSTICE ACT
October 21, 2020
TABLE OF CONTENTS
I. AUTHORITY ........................................................................................................... 1
II. STATEMENT OF POLICY .................................................................................... 1
A. Objectives ........................................................................................................1
B. Representational Services ...............................................................................1
C. Panel Administration .......................................................................................2
D. Compliance ......................................................................................................2
III. DEFINITIONS.......................................................................................................... 2
IV. ELIGIBILITY FOR CJA REPRESENTATION .................................................. 3
A. Subject-Matter Eligibility ................................................................................3
B. Financial Eligibility .........................................................................................6
V. TIMELY APPOINTMENT OF COUNSEL .......................................................... 8
VI. FEDERAL PUBLIC DEFENDER .......................................................................... 9
A. Establishment ..................................................................................................9
B. Staff Supervision and Case Workload ............................................................9
C. Standards and Professional Conduct ...............................................................9
D. Panel Attorney Training ..................................................................................9
E. Voucher Review ..............................................................................................9
VII. CJA PANEL COMMITTEE ................................................................................. 10
A. Establishment ................................................................................................10
B. Authority .......................................................................................................10
C. Composition ..................................................................................................10
D. Duties.............................................................................................................11
VIII. CJA PANEL MEMBERSHIP ............................................................................... 12
A. Establishment ................................................................................................12
B. Size ................................................................................................................12
C. Qualifications and Applications ....................................................................13
D. Selection & Reappointment Process .............................................................14
E. Removal.........................................................................................................15
F. Complaints.....................................................................................................15
G. Withdrawal and Inactive Status.....................................................................16
IX. APPOINTED-ATTORNEY DUTIES .................................................................. 17
A. Standards and Professional Conduct .............................................................17
B. Training and Continuing Legal Education ....................................................18
C. Facilities and Technology Requirements ......................................................18
X. COUNSEL APPOINTMENT IN NON-CAPITAL CASES ............................... 19
A. Apportionment of Cases ................................................................................19
B. Number of Counsel .......................................................................................19
C. Appointment List ...........................................................................................19
D. Appointment Procedure.................................................................................19
E. Continuing Representation ............................................................................20
XI. CJA ATTORNEY COMPENSATION AND FUNDING FOR SERVICES ....21
A. Court Compensation Policies ........................................................................21
B. Claim Submission..........................................................................................21
C. Delegated Authority for Claim Approval......................................................22
D. Independent Review of Vouchers and Case-Funding Requests Reduced or
Denied by the FPD CJA Unit ........................................................................22
E. Investigative, Expert, and Other Services, and Litigation Expenses ............23
F. Case Budgeting..............................................................................................24
G. No Receipt of Other Payment .......................................................................24
H. Disclosure ......................................................................................................24
XII. SPECIAL PROVISIONS FOR CAPITAL CASES ............................................ 24
A. Capital Cases .................................................................................................24
B. Applicable Legal Authority ...........................................................................25
C. Counsel Qualifications ..................................................................................25
D. Appointment of Counsel ...............................................................................26
E. Case Budgeting and Resources .....................................................................27
XIII. EFFECTIVE DATE ............................................................................................... 27
I. AUTHORITY
The judges of the United States District Court for the District of Nevada (“the
District Court”) adopt this Plan for Implementation and Administration of the
Criminal Justice Act (“the Plan”), as approved by the Judicial Council of the Ninth
Circuit, for furnishing representation for any person financially unable to obtain
adequate representation as required by the Criminal Justice Act (“CJA”) of 1964,
as amended, 18 U.S.C. § 3006A, and the Guidelines for Administering the CJA
and Related Statutes, Volume 7A, Guide to Judiciary Policy (“CJA Guidelines”).
II. STATEMENT OF POLICY
A. Objectives
The objectives of this Plan are to:
1. Attain the goal of equal justice under the law by providing all
eligible persons with timely appointed counsel services that are
consistent with the best practices of the legal profession;
2. Ensure that services are cost effective without compromising the
quality of representation;
3. Promote the independence of the defense function so that the rights
of individual defendants are safeguarded and enforced; and
4. Particularize the requirements of the CJA, the USA Patriot
Improvement and Reauthorization Act of 2005 (recodified at 18
U.S.C. § 3599), CJA Guidelines, Ninth Circuit CJA Policies and
Procedures, and Local Rules of the District of Nevada in a way that
meets the needs of this district.
This Plan must be administered so that those accused of a crime or those
who are otherwise eligible for services under the CJA will not be deprived
of the right to counsel, or any element of representation necessary to an
effective defense, due to lack of financial resources.
B. Representational Services
This Plan provides for representational services by the Office of the Federal
Public Defender for the District of Nevada (“FPDO”) and for the
appointment and compensation of private attorneys from an approved panel
1
list (“CJA Panel”) and other private attorneys in limited circumstances, in
cases authorized under the CJA and related statutes.
C. Panel Administration
Administration of the CJA Panel, as set forth in this Plan, is hereby
delegated and assigned to the Federal Public Defender for the District of
Nevada (“FPD”). The District Court further authorizes a CJA Standing
Committee comprised of judges of the District Court, with representation
from the unofficial southern and northern divisions, to oversee and assist
the FPD in the administration of the CJA Panel in conformity with the roles
and responsibilities described herein.
D. Compliance
The District Court, its clerk, the FPD, attorneys provided by a bar
association or legal-aid agency, private attorneys appointed under the CJA,
and the United States Pretrial Services Office must comply with the CJA
Guidelines, approved by the Judicial Conference or its Committee on
Defender Services, the Ninth Circuit’s CJA Policies and Procedures, and
with this Plan. The District Court will ensure that a current copy of the
CJA Plan is made available on the District Court’s and the FPDO’s
websites and provided to counsel upon the attorney’s designation as a
member of the CJA Panel.
III. DEFINITIONS
A. “Appointed Attorney” is an attorney designated to represent a financially
eligible person under the CJA and this Plan. Such attorneys include private
attorneys, the FPD, staff attorneys of the FPDO, and attorneys provided by a
bar association or legal-aid agency.
B. “CJA Panel Attorney” or “panel attorney” is a private attorney appointed
under this Plan who provides representation for financially eligible
individuals who are not represented by the FPDO.
C. “CJA Panel Committee” is a committee established by this Plan that
consists of the FPD or delegate; the PADR or delegate; CJA Resource
Counsel; two criminal-defense attorneys from the unofficial northern
division and two from the unofficial southern division, with at least one from
each division being a member of the CJA Panel; and an ex officio staff
member employed by the FPDO.
2
D. “CJA Resource Counsel” are attorneys employed by the FPDO who have
been designated by the FPD to administer the CJA Panel.
E. “CJA Standing Committee” is comprised of three judges with
representation from the unofficial southern and northern divisions of the
District Court. Members of this committee are selected by the Chief
District Judge.
F. “FPD CJA Unit” consists of CJA Resource Counsel and such other
individuals identified by the FPD to assist with the administration of the
CJA Panel.
G. “Panel Attorney District Representative” or “PADR” is a member of the
CJA Panel who has been selected by the FPD, with approval from the Chief
District Judge, to serve as a representative of the CJA Panel and for the
Defender Services CJA PADR program and local CJA committees.
H. “Representation” includes legal services provided by counsel, legal
support staff (such as paralegals, investigators, or experts), litigation-
support vendors, and the expenses arising from the provision of legal
services.
IV. ELIGIBILITY FOR CJA REPRESENTATION
A. Subject-Matter Eligibility
1. Mandatory. Representation must be provided for any financially
eligible person who meets at least one of the following criteria:
a. Charged with a felony or Class A misdemeanor;
b. Juvenile alleged to have committed an act of juvenile
delinquency as defined in 18 U.S.C. § 5031;
c. Charged with a violation of probation, or faces a change of a
term or condition of probation (unless the modification sought
is favorable to the probationer and the government has not
objected to the proposed change);
d. Under arrest, when appointed representation is required by
law;
3
e. Entitled to appointed counsel in parole proceedings;
f. Charged with a violation of supervised release or faces
modification, reduction, or enlargement of a condition, or
extension or revocation of a term of supervised release;
g. Subject to a mental-condition hearing under 18 U.S.C. chapter
313;
h. In custody as a material witness;
i. Seeks to set aside or vacate a sentence of death, or when an
evidentiary hearing is warranted in a non-capital proceeding
under 28 U.S.C. § 2254 or § 2255;
j. Entitled to appointed counsel in verification-of-consent
proceedings in connection with a transfer of an offender to or
from the United States for execution of a penal sentence under
18 U.S.C. § 4109;
k. Entitled to appointment of counsel under the Sixth
Amendment to the Constitution;
l. Faces loss of liberty in a case and federal law requires the
appointment of counsel; or
m. Charged with a petty offense (Class B or C misdemeanor, or
an infraction) that is proceeding to trial.
2. Discretionary. Whenever a district judge or magistrate judge
determines that the interests of justice so require, representation may
be provided for any financially eligible person who meets at least one
of the following criteria:
a. Charged with a petty offense (Class B or C misdemeanor, or
an infraction) for which a sentence of confinement is
authorized;
b. Seeks relief under 28 U.S.C. §§ 2241, 2254, or 2255 other than
to set aside or vacate a death sentence;
4
c. Charged with civil or criminal contempt and faces loss of
liberty;
d. Called as a witness before a grand jury, a federal court,
Congress, or a federal agency or commission that has the
power to compel testimony, and there is reason to believe,
either prior to or during testimony, that the witness could be
subject to criminal prosecution, a civil or criminal contempt
proceeding, or face loss of liberty;
e. Advised by the United States Attorney or a law-enforcement
officer that the person is the target of a grand jury
investigation;
f. Proposed by the United States Attorney for processing under a
pretrial-diversion program;
g. Held for international extradition under 18 U.S.C. chapter 209;
or;
h. May be eligible for early release or sentence reduction as a
result of newly enacted federal law.
3. Ancillary Matters. The court has discretion to appoint counsel for
financially eligible persons in ancillary matters appropriate to
criminal proceedings under 18 U.S.C. § 3006A(c). In determining
whether representation in an ancillary matter is appropriate to the
criminal proceedings, the court should consider whether such
representation is reasonably necessary to:
a. Protect a constitutional right;
b. Contribute in some significant way to the defense of the
principal criminal charge;
c. Aid in preparation for the trial or disposition of the principal
criminal charge;
d. Enforce the terms of a plea agreement in the principal criminal
charge;
e. Preserve the claim of the CJA client to an interest in real or
5
personal property subject to civil-forfeiture proceedings under
18 U.S.C. § 983, 19 U.S.C. § 1602, 21 U.S.C. § 881, or similar
statutes, when the property, if recovered by the client, may be
considered for reimbursement under 18 U.S.C. § 3006A(f); or
f. Effectuate the return of real or personal property belonging to
the CJA client that may be subject to a motion for return of
property under Fed. R. Crim. P. 41(g), which property, if
recovered by the client, may be considered for reimbursement
under 18 U.S.C. § 3006A(f).
B. Financial Eligibility
1. Presentation of Individual for Financial Eligibility Determination
a. Duties of Appointed Attorney
(1) When an individual may be eligible for or seeks
representation under the CJA, the FPDO will
immediately investigate and determine whether an
actual or potential conflict exists as to its representation
of this individual and, if so, will promptly notify the
FPD CJA Unit to facilitate the timely appointment of a
panel attorney.
(2) Whenever practicable, the appointed attorney will
discuss with the person the right to appointed counsel,
assist with completion of a financial affidavit (Form
CJA 23), and arrange to have the matter promptly
presented before a judicial officer of the District Court
(“the court”) to determine financial eligibility and
counsel appointment.
b. Duties of the United States Pretrial Services Office
(1) When counsel has been assigned by the FPD CJA
Unit, the United States Pretrial Services officer will
provide counsel with notice and a reasonable
opportunity to attend any interview of the individual
by the United States Pretrial Services officer prior to
the initial pretrial release or detention hearing.
6
(2) The duties of the United States Pretrial Services
officer will be consistent with the District Court’s
general orders and the Memo of Understanding
between the United States Pretrial Services Office
and the FPDO.
(3) If counsel does not contact the United States Pretrial
Services officer after notice and a reasonable
opportunity to do so, the United States Pretrial
Services officer may contact the individual and,
consistent with the United States Pretrial Services
Office’s policy and practice, read to the individual
notice of the right to have counsel present during the
interview, and will terminate the interview if the
individual asks for counsel to be present.
2. Eligibility Determination
a. In every case in which 18 U.S.C. § 3006A(a) and related
statutes authorize the appointment of counsel, the court must
advise the person of the right to be represented by counsel
throughout the case and that, if so desired, the court will
appoint counsel if the person is financially unable to obtain
counsel.
b. The completed financial eligibility affidavit (Form CJA 23)
must reflect relevant information bearing on the person’s
financial eligibility for appointed counsel.
c. Determining eligibility for representation under the CJA is a
judicial function performed after making appropriate inquiries
into the person’s financial eligibility and the standards set
forth in Section 3 below.
3. Standards
a. In determining whether a person is “financially unable to
obtain counsel,” the court should consider the cost of
providing the person and the person’s dependents with life’s
necessities, the cost of securing pretrial release, asset
encumbrance, and the likely cost to retain counsel.
7
b. The initial eligibility determination must be made without
regard to the financial ability of the person’s family to retain
counsel.
c. Any doubts about a person’s eligibility should be resolved in
favor of eligibility.
d. If, at any time after appointment, appointed counsel has
reason to believe that a person is financially able to retain
private counsel or make partial payment for the appointed
representation, and the source of counsel’s information is not
protected as a privileged communication, counsel must so
advise the court unless such disclosure will negatively affect
the person’s representation.
e. If, at any time after the appointment of counsel, the court
finds that a person who is represented by appointed counsel is
financially able to retain private counsel or make partial
payment for the appointed representation, the court may
terminate the appointment or direct the represented person to
pay available funds as provided in 18 U.S.C. § 3006A(f).
f. If, at any stage of the proceedings, the court finds that a
person is no longer financially able to pay retained counsel,
the court must appoint counsel in accordance with this Plan.
g. If, at any stage of the proceedings, the court finds that a pro se
or privately represented person is not financially able to pay
other representation costs, including investigative, expert, or
other services, funding may be authorized for those costs in
accordance with this Plan and the procedures set forth in the
Federal Public Defender’s CJA Policies and Procedures
Manual (“the CJA Manual”).
V. TIMELY APPOINTMENT OF COUNSEL
Eligible persons must receive appointed counsel as soon as practicable, which
means as soon as possible after receiving a target letter, after being taken into
custody, upon appearing before a judicial officer, when formally charged, when
notified of charges if formal charges are sealed, or when a judicial officer
8
otherwise determines that appointed counsel is appropriate under the CJA or this
Plan, whichever occurs earliest.
Appointment of counsel may be made retroactive to include representation
provided prior to appointment.
VI. FEDERAL PUBLIC DEFENDER
A. Establishment
The FPDO is established in this district under the CJA and is responsible for
representation of all individuals throughout the district who are eligible for
appointed counsel and for whom representation presents no conflict.
B. Staff Supervision and Case Workload
The FPD will be appointed in all cases assigned to the FPDO for
subsequent assignment to staff attorneys at the FPD’s discretion. The FPD
will continually monitor staff workloads to ensure high-quality
representation for all clients.
C. Standards and Professional Conduct
The FPDO must provide high-quality representation consistent with the
best practices of the legal profession. The FPDO must conform to the
highest standards of professional conduct, including the Federal Public
Defender Code of Conduct.
D. Panel Attorney Training
In coordination with the PADR and the CJA Panel Committee, the FPD
will assess the training needs of the CJA Panel and provide regularly
scheduled training opportunities and other educational resources that
include but are not limited to updates regarding substantive law, sharing
best practices in federal criminal-defense, and presentations on courtroom
and office technology. The FPDO will publish on its website the
opportunities for continuing legal education that are provided by the FPDO.
E. Voucher Review
The FPDO will assist the District Court in ensuring compliance with
mandated billing guidelines and accurate record keeping, assessing the
reasonableness of vouchers and individual time entries, and providing due
9
process and fairness in voucher review. With approval of the CJA Standing
Committee, the FPDO will publish on its website the policies and
procedures for independent review of panel attorney and service provider
voucher reductions and case-funding denials.
VII. CJA PANEL COMMITTEE
A. Establishment
A CJA Panel Committee will be established by the FPD, in consultation
with the CJA Standing Committee, to assist the CJA Standing Committee
in the selection, oversight, and management of panel attorneys. The FPD
will determine the CJA Panel Committee’s manner of operation.
The CJA Panel Committee will establish subcommittees that may include
nonmembers of the CJA Panel to address specific CJA-related issues such
as recruiting panel attorneys, training, mentoring, resolving complaints, and
reviewing vouchers and case-funding denials or reductions.
B. Authority
The District Court delegates to the CJA Panel Committee the authority to
oversee the selection and renewal process for attorneys on the CJA Panel
consistent with this Plan.
The District Court delegates to the CJA Panel Committee the authority to
manage the conduct or performance of attorneys on the CJA Panel consistent
with this Plan. The CJA Standing Committee retains final authority to
address the performance and conduct of CJA Panel Attorneys.
C. Composition
1. At a minimum, the CJA Panel Committee will consist of the
following members:
a. FPD or FPD delegate as a permanent member, who will chair
the Committee and represent it to the CJA Standing
Committee;
b. PADR or PADR delegate as a permanent member;
c. CJA Resource Counsel as permanent members;
10
d. Two criminal-defense attorneys from the unofficial northern
division and two from the unofficial southern division of the
District Court, with at least one from each division being a
member of the CJA Panel; and
e. An ex officio staff member employed by the FPDO who will
act as administrative coordinator.
2. Members of the CJA Panel Committee who have a conflict of
interest must recuse themselves from participation.
3. Except for the FPD, PADR, CJA Resource Counsel, and the ex
officio administrator, CJA Panel Committee members will serve for
three years and may be extended for one additional three-year term.
Terms will be staggered to ensure continuity on the CJA Panel
Committee and rotation of members. Vacancies will be filled upon
recommendation by a majority vote of the remaining committee
members and approval by the CJA Standing Committee.
4. The CJA Panel Committee will strive to maintain a diverse committee
membership.
5. The CJA Panel Committee will meet at least twice per year and at
any time the District Court or a committee member asks the
committee to consider an issue.
D. Duties
1. CJA Panel Membership. The CJA Panel Committee will examine
applications for appointment or reappointment to the CJA Panel and
recommend to the District Court, through its CJA Standing
Committee, approval of those attorneys deemed qualified to serve on
the CJA Panel. The committee will also recommend removal of any
panel attorney who fails to satisfy the membership requirements,
including failing to provide high-quality representation or engaging
in conduct that would render continued panel service inappropriate.
2. Recruitment. The CJA Panel Committee will strive to create and
maintain a diverse CJA Panel of the highest caliber federal criminal-
defense practitioners. The committee will devise a recruitment
strategy to identify and train a diverse set of viable panel applicants.
11
3. Mentoring. The CJA Panel Committee will create and administer a
mentoring program as determined by the needs of the CJA Plan to
help prepare viable panel candidates by pairing experienced
practitioners with attorneys new to federal criminal practice.
Mentoring program participants will be compensated to the extent
possible and as deemed appropriate by the CJA Standing
Committee.
4. Training. With the approval of the CJA Standing Committee, the
CJA Panel Committee will establish the type and number of hours of
continuing education required of panel attorneys at least once every
three years. Continuing-education requirements approved by the
CJA Standing Committee will be published on the FPDO’s website.
5. Annual Report. Annually, the CJA Panel Committee will review
operation and administration of the CJA Panel for the preceding year
and provide a report to the CJA Standing Committee. The report
will describe the number of cases assigned to panel attorneys and the
distribution of those cases, efforts to recruit qualified and diverse
attorneys, any proposed changes to panel size, any recurring issues
or difficulties that panel attorneys or their clients encounter, and any
other operating difficulties, along with recommendations for
appropriate changes.
VIII. CJA PANEL MEMBERSHIP
A. Establishment
The existing, previously established panels of attorneys who are eligible
and willing to be appointed to provide representation under the CJA are
hereby recognized. Nothing in this Plan creates a property interest in CJA
Panel membership.
B. Size
The size of the CJA Panel will be determined by the CJA Panel Committee,
subject to the CJA Standing Committee’s review, based on panel attorney
caseloads and activity. The CJA Panel must be large enough to provide a
sufficient number of experienced attorneys to handle the CJA caseload, yet
small enough so panel attorneys will each receive an adequate number of
appointments to maintain their federal criminal-defense work proficiency,
thereby enabling them to provide high-quality representation consistent with
the best practices of the legal profession.
12
C. Qualifications and Applications
1. Equal Opportunity. All qualified attorneys are encouraged to apply
for CJA Panel membership.
2. Application. Application forms are available on the FPDO’s
website. Applications may be submitted to the CJA Panel
Committee at any time by emailing
[email protected].
3. Eligibility. CJA Panel applicants must meet the following criteria:
a. Except for appellate panel attorneys, be members in good
standing of the federal bar of this district;
b. Except for appellate or habeas panel attorneys, maintain a
primary, satellite, or shared office in the district;
c. Possess strong litigation and writing skills;
d. Demonstrate proficiency with the Bail Reform Act,
Recommendations for Electronically Stored Information
Discovery Production in Federal Criminal Cases (ESI
Protocol), Federal Rules of Evidence, Federal Rules of
Criminal Procedure, Federal Rules of Appellate Procedure,
United States Sentencing Guidelines, federal sentencing
procedures, and the District Court’s Local Rules;
e. Have the training and ability to manage and effectively utilize
electronic case-presentation equipment and software in the
courtroom and manage electronic discovery; and
f. Have significant experience representing persons charged with
serious criminal offenses and demonstrate a commitment to
the defense of people who lack the financial means to hire an
attorney.
Applicants who do not possess the experience set forth above but believe
they have equivalent other experience, or who have completed a mentoring
program, are encouraged to apply and set forth in writing the details of that
experience for the CJA Panel Committee’s consideration.
13
D. Selection & Reappointment Process
The CJA Panel Committee will manage the process of selecting attorneys for
the CJA Panel. The CJA Panel Committee will make recommendations to
the CJA Standing Committee, which will accept or reject such
recommendations after giving them due weight.
1. Terms. Once appointed, attorneys serve three years on the CJA
Panel, unless otherwise determined by the CJA Standing Committee.
Panel attorneys may serve an unlimited number of terms and may
serve on specialized panels as deemed appropriate by the CJA
Standing Committee.
2. Reappointment. The CJA Panel Committee will notify panel
attorneys of the need to apply for reappointment to the CJA Panel
and will set forth the procedures and deadlines for reapplying.
3. Performance Evaluations. Attorneys seeking reappointment to the
CJA Panel will undergo a performance evaluation prior to the
expiration of their appointment term, unless otherwise determined by
the CJA Standing Committee. The performance evaluation will be
conducted by the CJA Panel Committee in compliance with the
procedures set forth in the CJA Manual. The following performance
indicators are utilized:
a. Nature and history of appointments;
b. Adherence to performance standards;
c. Billing practices and case-funding requests;
d. Personal observations of in-court performance;
e. Complaints;
f. Training; and
g. Professionalism.
Information collected during the performance evaluation will be provided to
the panel attorney seeking reappointment and to the CJA Standing
14
Committee. Panel attorneys will be given an opportunity to respond to any
feedback provided in the performance evaluation.
Concerns regarding a panel attorney’s performance will be referred to the
FPD, who will follow the procedures for addressing complaints that are
outlined in the CJA Manual.
E. Removal
1. Mandatory Removal. CJA Panel Attorneys who are suspended or
disbarred from the practice of law by any state or federal court will
be removed from the CJA Panel immediately and ordered to
withdraw from current CJA representations. The FPD CJA Unit will
be immediately notified when any CJA Panel Attorney is removed.
2. Automatic Disciplinary Review. The CJA Panel Committee will
conduct an automatic disciplinary review of any panel attorney who
has been removed from any indigent defense panel; against whom
any licensing authority, grievance committee, or administrative body
has acted; or when a finding of probable cause, contempt, sanction,
or reprimand has been made against the panel attorney by any state
or federal court.
3. Discretionary Removal. The CJA Panel Committee may
recommend to the District Court, through its CJA Standing
Committee, the removal of a panel attorney who fails to fulfill the
obligations of CJA Panel membership.
F. Complaints
In an active case, a complaint by an individual represented by a panel
attorney will be reviewed by the presiding judge.
Complaints regarding a panel attorney’s performance must be directed to
the FPD CJA Unit by emailing
[email protected]. The FPDO will
publish on its website the procedures for receiving and reviewing such
complaints, as approved by the CJA Standing Committee.
1. Initiation. A complaint about a panel attorney’s performance may be
initiated by any concerned individual and should be addressed to the
FPD, who will determine whether further investigation is necessary.
15
If the FPD determines that no further investigation is required, the
FPD will notify the complainant.
2. Content. Complaints must be in writing and state the alleged
deficiency with specificity. A complaint must contain the following
minimum information:
a. The complainant’s identity and contact information;
b. A detailed statement of the allegations, including names and
contact information for witnesses to the events supporting the
complaint; and
c. Supporting documentation, if available.
3. Notice. If the FPD determines that the complaint warrants an
investigation, the FPD will follow the complaint-review procedures in
the CJA Manual.
4. Disposition of Complaint. The CJA Panel Committee will determine
the final disposition of the complaint as stated in the CJA Manual,
which may include but is not limited to the following: no action, a
suspension for a limited time, a remedial plan, or a recommendation
for removal. A recommendation for removal requires confirmation by
the District Court, through the CJA Standing Committee.
5. Confidentiality. Information about complaints and potential
disciplinary action will remain confidential unless otherwise directed
by the court or required by applicable ethical standards. Unless the
complainant is a member of the judiciary, the complainant will receive
only confirmation that the complaint was received.
G. Withdrawal and Inactive Status
1. Withdrawal. An attorney may withdraw from the CJA Panel by
submitting a letter to the FPD, as Chair of the CJA Panel Committee.
The letter must include a list of pending appointments. Unless
otherwise ordered or relieved, the panel attorney will remain
responsible for representing clients in appointed cases until the court
enters an order appointing substitute counsel. Withdrawal from the
16
CJA Panel will become effective upon receipt of the letter by the CJA
Panel Committee.
2. Inactive Status. Members of the CJA Panel may voluntarily place
themselves on inactive status. Panel attorneys must obtain approval
from CJA Resource Counsel to remain on inactive status for more
than twelve months during one appointment term. CJA Resource
Counsel may place a member of the CJA Panel on inactive status
based on the following considerations:
a. The need to achieve an appropriate distribution of appointed
cases;
b. The pendency of an investigation by the CJA Panel
Committee; or
c. Another specified reason consistent with the objectives and
intent of this Plan.
CJA Resource Counsel will notify any attorney who has been
involuntarily placed on inactive status for longer than three months of
the reason for such placement and the anticipated period of inactivity.
IX. APPOINTED-ATTORNEY DUTIES
A. Standards and Professional Conduct
1. Appointed attorneys must provide high-quality representation
consistent with the legal profession’s best practices as guided by the
following authorities:
a. Federal Adaptation of the National Legal Aid and Defender
Association’s Performance Guidelines for Criminal Defense
Representations;
b. The American Bar Association’s Criminal Justice Standards
for the Defense Function and Model Rules of Professional
Conduct;
c. Nevada Indigent Defense Standards of Performance,
available on the FPDO’s website;
17
d. FPD performance standards for criminal-defense
representations under the CJA, available on the FPDO’s
website; and
e. Any other standards adopted by the District Court.
2. Attorneys appointed under the CJA must immediately notify, in
writing, the FPD and CJA Standing Committee if they are disbarred,
suspended, sanctioned, or reprimanded by any court, licensing
authority, grievance committee, or administrative body, or if they are
removed from a state or federal indigent-defense panel in another
district.
B. Training and Continuing Legal Education
1. Panel attorneys are expected to remain apprised of developments in
federal criminal-defense law, practice, and procedure, including
electronic-discovery techniques, courtroom technology, and CJA
billing and case-funding procedures.
2. Panel attorneys must annually attend Continuing Legal Education
(“CLE”) relevant to federal criminal practice. The FPDO will
publish on its website the CLE requirements for panel attorneys as
approved by the CJA Standing Committee.
3. Failure to comply with these training and legal-education
requirements may be grounds for removal from the CJA Panel.
C. Facilities and Technology Requirements
1. Panel attorneys must have the facilities, resources, and technological
capabilities to effectively and efficiently manage their cases,
including access to office space to meet with clients and the
technological resources to receive, review, organize, and otherwise
manage electronic discovery, records, and courtroom technology.
2. Panel attorneys must know and comply with the requirements of
electronic filing and eVoucher, including how to submit requests for
investigative, expert, and other services.
18
X. COUNSEL APPOINTMENT IN NON-CAPITAL CASES
A. Apportionment of Cases
The FPD CJA Unit will endeavor to balance the workload in case
assignments among attorneys on the CJA Panel.
B. Number of Counsel
Upon the recommendation of CJA Resource Counsel, more than one
attorney may be appointed in a case determined by the CJA Standing
Committee to be extremely difficult or when necessary in the interests of
justice to ensure high-quality representation.
Co-counsel who are members of the CJA Panel will be compensated at the
non-capital CJA hourly rate. If a non-panel attorney is appointed as co-
counsel, the CJA Standing Committee will determine the hourly rate based
on that attorney’s experience and qualifications.
C. Appointment List
The FPD CJA Unit will maintain a current list of all CJA panel attorneys
with current office addresses, email addresses and telephone numbers, as
well as a statement of qualifications and experience. CJA panel attorneys
are required to timely provide updated contact information to the FPD CJA
Unit.
D. Appointment Procedure
The FPD CJA Unit is responsible for assigning cases to appointed
attorneys. Appointment requests must be emailed to
[email protected].
1. The FPD CJA Unit will maintain a record of appointments and data
reflecting the proportion of appointments among CJA panel
attorneys and the FPDO.
2. Assignment of cases to panel attorneys will ordinarily be made on a
rotational basis. In a complex or otherwise difficult case, the FPD
CJA Unit may assign a panel attorney outside of the normal rotation
to ensure that the defendant has sufficiently experienced counsel.
19
3. An attorney who is not a member of the CJA Panel may be
appointed in special circumstances, such as when the appointment of
a particular attorney is in the interests of justice, judicial economy, or
continuity of representation; in a large, multi-defendant case for
which an insufficient number of panel attorneys exists in the district,
or for any other compelling reason. It is not anticipated that special
circumstances will arise often, and the procedures set forth in the
Plan are presumed to be sufficient in the vast majority of cases.
Appointments made under this section will be reported to the CJA
Panel Committee.
4. Attorneys appointed under one or more of the circumstances
identified in Section X(D)(3) who are members in good standing of a
CJA panel in another district court may be admitted to practice in
Nevada pro hac vice without submitting an application or fee. The
order appointing counsel will reflect that the requirements of LR IA
11-2, including payment of the admission fee, are waived.
E. Continuing Representation
1. Once counsel is appointed under the CJA, that representation will
continue until:
a. The matter is closed, including conclusion of any appellate or
certiorari proceedings;
b. Substitute counsel has filed a notice of appearance;
c. An order is entered allowing the client to proceed pro se; or
d. The appointment is otherwise terminated by court order.
2. If trial counsel prefers to withdraw in favor of new counsel on
appeal, trial counsel must first file the notice of appeal to preserve
the client’s right to appeal and then move to withdraw in the Court of
Appeals, asking for the appointment of substitute counsel.
20
XI. CJA ATTORNEY COMPENSATION AND FUNDING FOR SERVICES
A. Court Compensation Policies
1. Providing fair compensation to appointed counsel is a critical
component of the administration of justice. Attorneys on the CJA
Panel must be compensated for time expended in and out of court
and reimbursed for expenses reasonably incurred. In determining
the reasonableness of out-of-court time, three factors will be
considered:
a. Whether the work was performed;
b. Whether the work performed was a reasonable means of
protecting the client’s interests in the litigation; and
c. Whether the time spent to accomplish that work was
reasonable.
2. Voucher reductions will be limited to mathematical errors, instances
in which work billed was not compensable or undertaken, and
instances in which the hours billed clearly exceed what was
reasonably required to complete the task.
3. Vouchers and funding requests for service providers, excess attorney
compensation, and other litigation costs will not be delayed or
reduced to lessen costs in response to adverse government-funding
circumstances.
4. Absent extraordinary circumstances, review of CJA-related requests
will be initiated within 30 days of submission.
B. Claim Submission
1. Claims for compensation must be submitted on the appropriate CJA
form using the district’s eVoucher program. Instructions are
available on the FPDO’s website.
2. Claims for compensation must be submitted at 30- to 90-day
intervals after the initial appointment, provided the amount claimed
exceeds $500.
21
3. Final vouchers must be submitted no later than 90 days after final
disposition of the case or termination of the appointment, whichever
occurs earlier. Final vouchers submitted after this deadline must be
accompanied by a letter demonstrating good cause for the untimely
submission. Late vouchers submitted with such a letter may still be
rejected.
4. Counsel must obtain prior authorization from the CJA Standing
Committee before submitting a voucher one year or more after final
disposition of the case or termination of the appointment, whichever
occurs earlier. Instructions for obtaining prior authorization are
found in the CJA Manual.
5. Repeated violations of this claim-submission policy will be reported
to the FPD as Chair of the CJA Panel Committee and may result in
disciplinary action or removal from the CJA Panel.
C. Delegated Authority for Claim Approval
As provided by General Order 20-****, the District Court has delegated to
the FPD the authority to approve CJA claims for payment, while retaining
ultimate review and approval authority. The FPD CJA Unit will review
CJA vouchers for accuracy and compensability under the CJA Guidelines,
Ninth Circuit CJA Policies and Procedures, this CJA Plan, and related
compensability and billing guidelines.
D. Independent Review of Vouchers and Case-Funding Requests Reduced
or Denied by the FPD CJA Unit
1. Notice of Reduction or Denial. If the FPD CJA Unit determines that
a claim for compensation or expense should be reduced by more than
$500, or if a request for case-funding is denied in whole or in part, the
FPD CJA Unit will provide counsel with the following:
a. Prior notice of the proposed reduction or denial; and
b. Instructions for seeking independent review of the reduction
or denial.
2. Informal Peer Review. Any request to review a reduction or denial
must be presented to the FPD who, as Chair of the CJA Panel
Committee, will implement an informal peer review and follow the
procedures in the CJA Manual.
22
3. Formal Review by CJA Standing Committee. A formal,
independent review by nonconflicted members of the CJA Standing
Committee will be available to any panel attorney or service
provider seeking judicial review of the decision following the
informal peer review by the CJA Panel Committee. The panel
attorney or service provider must provide a written request to the
CJA Standing Committee by emailing
[email protected]
within 10 days of notice of the CJA Panel Committee’s decision.
4. Result of Independent Review. Nonconflicted members of the CJA
Standing Committee will review the information considered during
the CJA Panel Committee’s informal peer review and issue a written
decision to the panel attorney or service provider within 30 days of
the request. Any written decision issued by the CJA Standing
Committee will be made a part of the case record ex parte and under
seal.
E. Investigative, Expert, and Other Services, and Litigation Expenses
1. Financial Eligibility Counsel for a person financially unable to
obtain investigative, expert, or other services necessary for an
adequate defense may request CJA funding in an ex parte application
to the court as provided in 18 U.S.C. § 3006A(e)(1), regardless of
whether counsel is appointed under the CJA, by following the
procedures in the CJA Manual.
2. Delegation. As provided in General Order 20-***, the District Court
has delegated to the FPD the authority to approve requests for
service providers and litigation expenses, while retaining ultimate
review and approval authority.
3. Applications. Requests to authorize funds for investigative, expert,
and other services must be submitted using the district’s eVoucher
program and must not be disclosed except with the consent of the
person represented or as required by law or the CJA Guidelines.
4. Cost Considerations. Appointed counsel is expected to use lower-
cost service providers such as investigators or paralegals to
undertake tasks not requiring attorney expertise. In multi-defendant
cases with multiple CJA attorneys, counsel must make all reasonable
efforts to coordinate with each other to reduce costs, including
23
coordinating and sharing discovery and utilizing shared investigators
and other services to the extent possible.
5. Compliance. Counsel must comply with the policies established by
the Judicial Conference that appear in Chapter 3 of the CJA
Guidelines and are available on the FPDO’s website.
F. Case Budgeting
Consistent with CJA Guidelines, Ch. 2 §§ 230.26.10–20, panel attorneys
are encouraged to use case-budgeting techniques in non-capital
representations if combined attorney and service-provider costs are likely to
exceed the equivalent of 300 times the prevailing CJA panel attorney non-
capital hourly rate. The court or appointed counsel should contact CJA
Resource Counsel or the Ninth Circuit CJA Case Budgeting Attorney to
discuss whether a case may be appropriate for budgeting and the procedures
for submitting a case budget.
G. No Receipt of Other Payment
Appointed counsel may not require, request, or accept any payment or
promise of payment or any other valuable consideration for representation
under the CJA, unless such payment is approved by court order.
H. Disclosure
Payment vouchers and amounts paid to counsel or service providers must
not be disclosed except as required by law or the CJA Guidelines.
XII. SPECIAL PROVISIONS FOR CAPITAL CASES
A. Capital Cases
For purposes of this Plan, “capital cases” are those involving the death
penalty and include: (1) prosecutions under any provision of federal law
carrying a potential penalty of death; (2) direct appeals from cases in which
the death penalty was imposed by a federal court; (3) post-conviction
proceedings in which an individual sentenced to death by a federal court is
seeking to set aside or vacate the conviction or sentence under 28 U.S.C. §
2255; (4) habeas corpus proceedings in which an individual sentenced to
death by a state court is seeking to set aside or vacate the conviction or
sentence under 28 U.S.C. § 2254; and (5) all appropriate ancillary motions,
24
proceedings and procedures, as outlined in 18 U.S.C. § 3599 and as defined
in Section IV.A.3 of this Plan.
B. Applicable Legal Authority
The appointment and compensation of counsel in capital cases and the
authorization and payment of persons providing investigative, expert, and
other services are governed by 18 U.S.C. §§ 3005, 3006A, and 3599; CJA
Guidelines, Ch. 6.
C. Counsel Qualifications
1. In addition to the requirements for panel membership set out in
Section VIII of this Plan, counsel appointed in capital cases to
represent financially eligible persons must meet the statutory
requirements set out in 18 U.S.C. §§ 3005 and 3599(b)-(d) as
explained below, as well as any applicable circuit rules.
2. All attorneys appointed in capital cases must (1) be well qualified as
demonstrated by their training, commitment to the defense of capital
cases, and distinguished prior criminal-defense experience at the
relevant stage of the proceeding; (2) have sufficient time and
resources to devote to the representation, considering their current
caseload and the extraordinary demands of a capital case; (3) meet
all applicable guidelines adopted by the American Bar Association
concerning representation of persons in death-penalty cases; and (4)
consult regularly with the appropriate Death Penalty Resource
Counsel project available through the Defender Services division of
the Administrative Office of the United States Courts.
3. In trial-level capital cases requiring the appointment of learned
counsel, such counsel must meet the minimum standards in 18
U.S.C. §§ 3005 and 3599(b) or (d). Learned counsel must have
distinguished prior experience in the trial, appeal, or post-conviction
review of federal or state death-penalty cases that, in combination
with co-counsel, will assure high-quality representation.
“Distinguished prior experience” contemplates excellence, not
simply prior experience.
4. In direct appeals and post-conviction proceedings under 28 U.S.C.
§§ 2254 or 2255, appointed counsel must meet the minimum
standards required by 18 U.S.C. § 3599(c) or (d) and should have
25
distinguished prior experience in federal criminal appeals, capital
appeals, federal post-conviction proceedings, or capital post-
conviction proceedings.
5. Out-of-district counsel, including FPDO staff, who possess the
requisite expertise may be considered for appointment in capital
cases to achieve high-quality representation.
D. Appointment of Counsel
1. Trials. As soon as practicable after a defendant is charged with a
federal criminal offense where the penalty of death is possible, the
court must appoint two attorneys, at least one of whom meets the
qualifications for “learned counsel.” If necessary for an adequate
representation, more than two attorneys may be appointed. Consistent
with Section IV.A.1 of this Plan, the court may appoint capitally
qualified counsel for an individual that, although uncharged, is the
subject of an investigation in a federal death-eligible case. When
appointing counsel, the judge must consider and should give due
weight to the recommendation of the FPD, who will consult with
Death Penalty Resource Counsel to recommend qualified counsel.
2. Direct Appeals. Counsel representing a death-sentenced federal
appellant should include at least one attorney who did not represent
the appellant at trial. Each trial attorney who withdraws should be
replaced with similarly qualified counsel to represent the defendant
on appeal. When appointing counsel, the court should consider and
give due weight to the recommendation of the FPD, who will consult
with Federal Capital Appellate Resource Counsel to recommend
qualified counsel.
3. Post-Conviction Proceedings. In any post-conviction proceeding
under 28 U.S.C. §§ 2255 or 2254, the court must appoint at least one
qualified attorney and may consider appointing at least two given the
complex, demanding, and protracted nature of death-penalty
proceedings. When appointing counsel, the court should consider
and give due weight to the recommendation of the FPD, who will
consult with the appropriate Resource Counsel project to recommend
qualified counsel. For § 2255 proceedings, appointment should take
place, if possible, prior to denial of certiorari on direct appeal by the
United States Supreme Court. For § 2254 proceedings, appointment
26
should take place at the earliest time permissible to permit federal
counsel to avail themselves of the full statute-of-limitations period to
prepare a petition.
E. Case Budgeting and Resources
All capital cases, unless staffed only by the FPDO, must be budgeted. As
early as practicable after appointment, counsel or the court should refer the
case to CJA Resource Counsel or the Ninth Circuit CJA Case Budgeting
Attorney. Questions about the appointment and compensation of counsel
and the authorization and payment of investigative, expert, and other
service providers in capital cases also may be directed to the appropriate
Death Penalty Resource Counsel project or the AO Defender Services
Office, Legal and Policy Division Duty Attorney at (202) 502-3030.
XIII. EFFECTIVE DATE
This Plan will become effective when approved by the Judicial Council of the
Ninth Circuit.
ENTERED FOR THE COURT on this 21st day of October 2020.
__________________________________
CHIEF JUDGE, DISTRICT OF NEVADA
APPROVED BY THE JUDICIAL COUNCIL OF THE NINTH
CIRCUIT: DATE: December 22, 2020
_________________________________________________
CHIEF JUDGE, NINTH CIRCUIT COURT OF APPEALS
27
