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5 UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
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In the Matter of
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Amended Criminal Justice Act Plan
8 GENERAL ORDER NO. 03-17
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The Court hereby adopts the amended Criminal Justice Act Plan for the Western
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District of Washington as approved by the Judicial Council for the Ninth Circuit on February 16
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2017.
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14 DATED this 2nd day of March, 2017.
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RICARDO S. MARTINEZ
18 CHIEF UNITED STATES DISTRICT JUDGE
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GENERAL ORDER NO. 03-17
United States District Court
For the Western District of Washington
Criminal Justice Act Plan
Amended January 2017
I. Authority
Under the Criminal Justice Act (CJA) of 1964, as amended, 18 U.S.C.
§ 3006A, and Guide to Judiciary Policy (Guide), Volume 7A, the judges of
the United States District Court for the Western District of Washington
adopt this amended Plan for furnishing representation in federal court for
any person financially unable to obtain adequate representation.
II. Statement of Policy
A. Objectives
The objectives of this Plan are:
1. to attain the goal of equal justice under the law for all persons;
2. to provide all eligible persons with timely appointed counsel
services that are consistent with the best practices of the legal
profession, are cost-effective, and protect the independence of the
defense function so that the rights of individual defendants are
safeguarded and enforced; and
3. to particularize the requirements of the CJA, the USA Patriot
Improvement and Reauthorization Act of 2005 (recodified at
18 U.S.C. § 3599), the Ninth Circuit Policies and Procedures, and
the Guide, Vol. 7A, in a way that meets the needs of this district.
This Plan must therefore be administered so that those accused of
a crime, or 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. Compliance
1. The court, its Court Executive, the Federal Public Defender’s
Office, and private attorneys appointed under the CJA must comply
with the Guide, Vol. 7A, approved by the Judicial Conference of the
United States or its Committee on Defender Services, with the
policies of the Ninth Circuit Judicial Council, and with this Plan.
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2. The Federal Public Defender shall provide each private attorney
with a current copy of this Plan upon the attorney’s designation as a
member of the CJA panel of private attorneys (CJA Panel), and
each time the Plan is revised. The Federal Public Defender shall
maintain current copies of this Plan, the Western District of
Washington CJA Attorney Manual, and the Ninth Circuit Policies
and Procedures on its website.
III. Definitions
A. Representation
“Representation” includes counsel and investigative, expert, and
other services.
B. Appointed Attorney
“Appointed attorney” is an attorney designated to represent a
financially eligible person under the CJA and this Plan. Such
attorneys include private attorneys, the Federal Public Defender,
and staff attorneys of the Federal Public Defender Office.
C. CJA Administrator
“CJA Administrator” is a person designated by the Federal Public
Defender to administer the CJA Panel.
IV. Determination of Eligibility for CJA Representation
A. The determination of eligibility for representation under the CJA is a
judicial function to be performed by a judge after making appropriate
inquiries concerning the person's financial condition.
B. In every case in which appointment of counsel pursuant to 18 U.S.C.
§ 3006A(a) is appropriate, it is the duty of the judge to advise the party of
his or her right to counsel. The judge shall appoint counsel promptly if it is
found that the party is financially unable to obtain an attorney, unless the
party waives his or her right to be represented by counsel.
V. Provision of Responsibility
A. Subject Matter Eligibility
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1. Mandatory
Representation must be provided for any financially eligible person
who:
a. is charged with a felony, criminal contempt, or with a Class A
misdemeanor;
b. is a juvenile alleged to have committed an act of juvenile
delinquency as defined in 18 U.S.C. § 5031;
c. is charged with a violation of probation, supervised release,
or parole, or faces a change of a term or condition of
probation, supervised release, or parole (unless the
modification sought is favorable to the probationer and the
government has not objected to the proposed change);
d. is under arrest, when such representation is required by law;
e. is subject to a mental condition hearing under 18 U.S.C.
chapter 313;
f. is subject to being held in custody as a material witness;
g. is charged with a capital offense or is seeking to set aside or
vacate a death sentence under 28 U.S.C. § 2254 or § 2255.
All appointments under this section shall be made pursuant
to Appendix C of this Plan or Local Rule CR104(d);
h. is entitled to appointment of counsel in verification of consent
proceedings in connection with a transfer of an offender to or
from the United States for the execution of a penal sentence
under 18 U.S.C. § 4109;
i. has been called as a witness before a grand jury or a court
that has the power to compel testimony and there is reason
to believe the witness risks self-incrimination, loss of liberty,
or contempt of court;
j. is the subject of federal law enforcement interest and faces
the risk of federal charges;
k. is entitled to appointment of counsel under the Sixth
Amendment to the Constitution; or
l. faces loss of liberty in a case and federal law requires the
appointment of counsel.
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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:
a. is charged with a petty offense (Class B or C misdemeanor,
or an infraction) for which a sentence to confinement is
authorized;
b. is seeking relief under 28 U.S.C. §§ 2241, 2254, or 2255
other than to set aside or vacate a death sentence;
c. is charged with civil contempt and faces loss of liberty;
d. is proposed for processing under a pretrial diversion
program;
e. is held for international extradition under 18 U.S.C. chapter
209; or
f. is, under 18 U.S.C. § 983(b)(1), a person with standing to
contest the forfeiture of property in a judicial civil forfeiture
proceeding under a civil forfeiture statute, is financially
unable to obtain representation by counsel, and is
represented by counsel appointed under 18 U.S.C. § 3006A
in connection with a related criminal case. See Section
210.20.40 of the Guide.
3. Ancillary Matters
Representation may also be provided for financially eligible persons
in ancillary matters appropriate to the 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:
a. to protect a constitutional right;
b. to contribute in some significant way to the defense of the
principal criminal charge;
c. to aid in preparation for the trial or disposition of the principal
criminal charge;
d. to enforce the terms of a plea agreement in the principal
criminal charge;
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e. to preserve the claim of the CJA client to an interest in real
or personal property subject to civil forfeiture proceeding
under 18 U.S.C. § 983, 19 U.S.C. § 1602, 21 U.S.C. § 881,
or similar statutes, which property, if recovered by the client,
may be considered for reimbursement under 18 U.S.C.
§ 3006A(f); or
f. to effectuate the return of real or personal property belonging
to the CJA client, which 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 Accused for Financial Eligibility Determination
a. Duties of Law Enforcement
(i) Upon arrest, and where the defendant has not
retained or waived counsel, federal law enforcement
officials must promptly notify, telephonically or
electronically, the appropriate court personnel, who in
turn will notify the CJA Administrator of the arrest of
an individual in connection with a federal criminal
charge.
(ii) Employees of law enforcement agencies should not
participate in the completion of the financial affidavit
or seek to obtain information concerning financial
eligibility from a person requesting the appointment of
counsel.
b. Duties of United States Attorney’s Office
(i) Upon the return or unsealing of an indictment or the
filing of a criminal information, and where the
defendant has not retained or waived counsel, the
United States attorney or their delegate will promptly
notify, telephonically or electronically, the CJA
Administrator.
(ii) Upon issuance of a target letter, and where the
individual has not retained or waived counsel, the
United States attorney or their delegate must promptly
notify, telephonically or electronically, the CJA
Administrator.
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(iii) Employees of the United States Attorney’s Office
must not participate in the completion of the financial
affidavit or seek to obtain information concerning
financial eligibility from a person requesting the
appointment of counsel.
c. Duties of CJA Administrator, the Federal Public Defender,
and CJA counsel:
(i) Immediately investigate and determine whether an
actual or potential conflict exists for the Federal Public
Defender or any private CJA counsel who may be
appointed to represent the accused.
(ii) In the event of an actual or potential conflict, the CJA
Administrator will assign counsel who does not have
an actual or potential conflict of interest.
(iii) If a conflict which requires CJA counsel to withdraw is
later discovered, counsel shall promptly notify the
Court and the CJA administrator to facilitate the timely
appointment of other counsel.
(iv) When practicable, the Federal Public Defender will
discuss with the person who indicates that he or she
is not financially able to secure representation the
right to appointed counsel and, if appointment of
counsel seems likely, assist in the completion of a
financial affidavit (Form CJA 23), and arrange to have
the affidavit promptly presented before a magistrate
judge or district judge of this court for determination of
financial eligibility and appointment of counsel.
d. Duties of Pretrial Services Office
(i) When practicable, the pretrial services officer will not
conduct the pretrial service interview of a financially
eligible defendant until counsel has been appointed,
unless the right to counsel is waived.
(ii) When counsel has been appointed, the pretrial
services officer will provide counsel notice and
counsel will attend any interview of the defendant by
the pretrial services officer prior to the initial pretrial
release or detention hearing, unless the defendant, on
the advice of counsel, agrees to proceed with the
interview in the absence of counsel.
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2. Factual Determination of Financial Eligibility
a. In every case where appointment of counsel is authorized
under 18 U.S.C. § 3006A(a) and related statutes, the court
must advise the person that he or she has a right to be
represented by counsel throughout the case and that, if so
desired, counsel will be appointed to represent the person if
he or she is financially unable to obtain counsel.
b. The determination of eligibility for representation under the
CJA is a judicial function to be performed by the court after
making appropriate inquiries concerning the person’s
financial eligibility. Other employees of the court may be
designated to obtain or verify the facts relevant to the
financial eligibility determination.
c. In determining whether a person is “financially unable to
obtain counsel,” consideration should be given to the cost of
providing the person and his or her dependents with the
necessities of life, the cost of securing pretrial release, asset
encumbrance, and the likely cost of retained counsel.
d. The initial determination of eligibility must be made without
regard to the financial ability of the person’s family to retain
counsel unless their family indicates willingness and ability to
do so promptly.
e. Any doubts about a person’s eligibility should be resolved in
the person’s favor; erroneous determinations of eligibility
may be corrected at a later time.
f. Relevant information bearing on the person’s financial
eligibility should be reflected on a financial eligibility affidavit
(Form CJA 23).
g. If at any time after the appointment of counsel a judge finds
that a person provided representation is financially able to
obtain counsel or make partial payment for the
representation, the judge may direct that any funds available
to the defendant be paid as provided in 18 U.S.C.
§ 3006A(f).
h. If at any stage of the proceedings a judge finds that a person
is no longer financially able to pay retained counsel, counsel
may be appointed in accordance with the general provisions
set forth in this Plan.
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VI. Timely Appointment of Counsel
A. Timing of Appointment
Counsel must be provided to eligible persons as soon as feasible in
the following circumstances, whichever occurs earliest:
1. after they are taken into custody;
2. when they appear before a magistrate or district court judge;
3. when they are formally charged or notified of charges if formal
charges are sealed; or
4. when a magistrate or district court judge otherwise considers
appointment of counsel appropriate under the CJA and related
statutes.
B. Court’s Responsibility
The court, in cooperation with the Federal Public Defender and the
United States Attorney, will make such arrangements with federal,
state, and local investigative and police agencies as will ensure
timely appointment of counsel.
C. Pretrial Service Interview
When practicable, unless the right to counsel is waived or the
defendant otherwise consents to a pretrial service interview without
counsel, financially eligible defendants will be provided appointed
counsel prior to being interviewed by a pretrial services officer.
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D. Retroactive Appointment of Counsel
Appointment of counsel may be made retroactive to include
representation provided prior to appointment.
VII. Provision of Representational Services
A. Federal Public Defender and Private Counsel
This Plan provides for representational services by the Federal
Public Defender and for the appointment and compensation of
private counsel from a CJA Panel list maintained by the CJA
Administrator in cases authorized under the CJA and related
statutes.
The Federal Public Defender is authorized under this Plan to
initially represent all persons arrested before the first appearance
and at bail hearings which take place on the date of initial
appearance.
B. Administration
Administration of the CJA Panel, as set forth in this Plan, is hereby
delegated and assigned to the Federal Public Defender.
C. Apportionment of Cases
Where practical and cost effective, private attorneys from the CJA
Panel will be appointed in a substantial proportion of the cases in
which the accused is determined to be financially eligible for
representation under the CJA. “Substantial” will usually be defined
as a minimum of twenty-five percent (25%) of the annual CJA
appointments.
D. Number of Counsel
More than one attorney may be appointed in any case when it has
been determined by the court to be extremely difficult or the
interests of justice require appointment of more than one attorney.
E. Capital Cases
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Procedures for appointment of counsel in cases where the
defendant is charged with a crime that may be punishable by death,
or is seeking to vacate or set aside a death sentence in
proceedings under 28 U.S.C. §§ 2254 or 2255, are set forth in in
Appendix C of this Plan.
VIII. Federal Public Defender Organization
A. Establishment
The Federal Public Defender is established in this district under the
CJA and is responsible for rendering defense services on
appointment throughout this district.
B. Standards
The Federal Public Defender must provide high quality
representation consistent with the best practices of the legal
profession and commensurate with those services rendered when
counsel is privately retained. See Polk County v. Dodson, 454 U.S.
312, 318 (1981) (“‘Once a lawyer has undertaken the
representation of an accused, the duties and obligations are the
same whether the lawyer is privately retained, appointed, or serving
in a legal aid or defender program.’” (quoting ABA Standards for
Criminal Justice section 4-3.9 (2d ed. 1980)).
C. Professional Conduct
The Federal Public Defender Organization must conform to the
highest standards of professional conduct, including but not limited
to the Washington State Rules for Professional Conduct and the
Code of Conduct for Federal Public Defender employees.
D. Private Practice of Law
Neither the Federal Public Defender nor any Defender employee
may engage in the private practice of law except as authorized by
the Federal Public Defender Code of Conduct.
E. Workload
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The Federal Public Defender Organization will continually monitor
the workloads of its staff to ensure high quality representation for all
clients.
F. Supervision of Defender Organization
The Federal Public Defender will be responsible for the supervision
and management of the Federal Public Defender organization.
Accordingly, the Federal Public Defender will be appointed in all
cases assigned to that organization for subsequent assignment to
staff attorneys at the discretion of the Federal Public Defender.
G. Administration of the Criminal Justice Act
In accordance with and subject to the provisions of this Plan and
further orders of the court, authority to administer the Criminal
Justice Act is assigned and delegated to the Federal Public
Defender. It shall be the responsibility of the Federal Public
Defender, subject to the approval of the court, to notify CJA Panel
attorneys of an appointment and the first date of appearance.
H. Training
The Federal Public Defender will assess the training needs of
Federal Public Defender staff and, in coordination with the CJA
Panel Attorney District Representative,1 the training needs of the
local panel attorneys, and provide training opportunities and other
educational resources. Such training will include presentations on
court room and office technology related to the defense of federal
criminal cases.
IX. CJA Panel of Private Attorneys
A. Formation of a Standing Committee to Oversee the Criminal Justice Act
Panel
1. The judges of the United States District Court for the Western
District of Washington authorize a Standing Committee to assist the
Federal Public Defender in the administration and oversight of the
CJA Panel. The Committee shall consist of six attorneys, each a
voting member. Four members of the Standing Committee shall be
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The CJA Panel Attorney District Representative (PADR) is a member of the district’s CJA
Panel who is selected by the local Federal Public Defender, with acquiescence from the chief
judge, to serve as the representative of the district’s CJA Panel for the national Defender
Services CJA PADR program and local CJA committees.
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selected by a majority vote of the judges of the court. At least one
such attorney shall be from the area served by the United States
District Court in Tacoma. Members of the Committee shall serve
without compensation.2
2. The Federal Public Defender or his or her representative will be a
permanent member of the Committee. The District’s national CJA
representative shall serve as a member of the Committee during
his or her term as district representative.
3. Membership on the Committee shall be for a term of three years.
Terms may be extended by the court for an additional three years.
Members’ terms shall be staggered to ensure continuity on the
Committee.
4. The Committee shall meet at least four times per year or at any
time the court asks the Committee to consider an issue. In addition
to reviewing CJA Panel membership, the Committee shall identify
and define any operating difficulties encountered in the
administration of the CJA Panel and make recommendations to the
court for appropriate changes.
5. The Committee shall act consistent with the requirements of
Appendix A to this Plan in making decisions and recommendations
related to participation, training, and compensation of CJA Panel
lawyers.
6. The Committee shall assist and advise the Federal Public Defender
in devising and presenting training programs for the CJA Panel.
Such training shall include communication with CJA Panel
attorneys on substantive and procedural changes in the law, local
rules, administrative requirements, ethics requirements, electronic
discovery, and other matters affecting the CJA Panel attorneys, and
shall include regularly scheduled seminars for CJA Panel attorneys
as well as the private bar.
7. The Committee will be permitted to use the staff of the Federal
Public Defender for administrative and record-keeping matters.
However, the Committee is not authorized to make requests for
services that would incur financial obligations without prior approval
of the court.
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The Court and the Federal Public Defender should make a diligent effort to ensure that the
composition of the Committee reflects the racial, ethnic, gender, and geographic diversity of the
district.
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X. Prerequisites for Participation on the CJA Panel
A. The CJA Panels shall consist of attorneys recommended by the Standing
Committee and approved by a majority of the judges of the district,
pursuant to the procedures outlined in Appendix A.
B. CJA Panel attorneys must be admitted to practice and in good standing in
the State of Washington, the United States District Court for the Western
District of Washington, and the Ninth Circuit Court of Appeals. In addition
to bar membership, CJA Panel attorneys should have prior federal and/or
state criminal trial experience, experience with serious or complex criminal
cases, knowledge of the Sentencing Guidelines and the Bail Reform Act,
knowledge of other relevant areas of federal criminal practice, and/or
clinical experience or participation in trial advocacy programs. CJA Panel
attorneys must have the training and ability to conduct electronic filing,
receive and manage electronic discovery, and the ability to manage and
effectively utilize electronic case presentation equipment and software in
the court room.
C. CJA Panel attorneys must have resources and support sufficient to
manage CJA assignments, including the availability of office space to
meet with clients. This also includes the necessary technological
resources to receive, review, organize, and otherwise manage electronic
discovery and records.
D. Each CJA Panel attorney must carry professional malpractice insurance
with minimum limits of $200,000.00 for each occurrence.
XI. Periodic Review and Removal of CJA Panel Members
A. A majority of the judges of the district may remove a member of the CJA
Panel at any time.
B. Periodically, the Committee will review participating lawyers as described
in Appendix A.
XII. Qualifications and Membership on the CJA Panel
A. Application
Application forms for membership on the CJA Panel are available
from the Federal Public Defender.
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B. Equal Opportunity
All qualified attorneys are encouraged to participate in the
furnishing of representation in CJA cases.
C. Eligibility
1. Applicants for the CJA Panel must be members in good standing of
the federal bar of this district and the Ninth Circuit Court of Appeals.
2. Applicants must maintain a primary, satellite, or shared office in this
district.
3. Applicants must possess strong litigation skills and demonstrate
proficiency with the federal sentencing guidelines, federal
sentencing procedures, the Bail Reform Act, the Federal Rules of
Criminal Procedure, and the Federal Rules of Evidence.
4. Applicants must 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.
5. Attorneys who do not possess the experience set forth above but
believe they have equivalent other experience are encouraged to
apply and set forth in writing the details of that experience for the
CJA Committee’s consideration.
D. Appointment to CJA Panel
After considering the recommendations of the CJA Standing
Committee, the chief judge will appoint or reappoint attorneys to the
CJA Panel. Due to the highly complex and demanding nature of
capital and habeas corpus cases, special procedures will be
followed for the eligibility and appointment of counsel in such
cases. See Appendix C of this Plan.
XIII. Obligations of CJA Panel Members
A. In addition to meeting the training, qualifications, facilities, and technology
requirements established by the Standing Committee, CJA Panel
members are expected to:
1. have an office procedure in place that facilitates the prompt receipt
of information concerning appointment in a CJA case;
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2. be qualified to represent an assigned client through the appellate
process and ancillary matters appropriate to the proceedings
unless or until relieved by order of the court;
3. promptly notify the Standing Committee, in writing, in the event any
action is taken by any court or bar affecting the standing of the
attorney to practice before such court or bar;
4. participate actively in the representation of eligible individuals;
5. comply with the requirements of electronic filing and have sufficient
knowledge and technological capability to effectively and efficiently
manage assigned cases;
6. participate in training related to the filing of CJA vouchers, know
and abide by procedures related to requests for services under the
CJA, and be willing to undertake cost-containment measures
recommended by the Committee;
7. conform to the highest standards of professional conduct.
B. Appointed counsel may not require, request, or accept any payment or
promise of payment or any other valuable consideration for representation
under the appointment, unless such payment is approved by order of the
court.
C. If at any time after appointment counsel obtains information that a client is
financially able to make payment, in whole or in part, for legal or other
services in connection with the client’s representation, and the source of
the attorney’s information is not confidential or privileged, counsel will
promptly advise the court.
D. In multi-defendant cases where multiple CJA attorneys are appointed,
counsel must make all reasonable efforts to coordinate with each other to
reduce costs, including coordinating and sharing discovery to the extent
possible and making joint applications for funding for investigators and
other services.
E. Appointed counsel are encouraged to use lower-billing associates,
contract lawyers, law clerks, investigators, or paralegals or other means to
minimize costs where lead attorney expertise may not be required, such
as for legal research and file review.
An appointed counsel may claim compensation for services
furnished by a partner or associate or, with prior authorization by
the court, counsel who is not a partner or associate, within the
maximum compensation guidelines set forth in the Ninth Circuit
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Policies and Procedures, separately identifying the provider of each
service.
XIV. Assignment of Cases to the CJA Panel
A. The Federal Public Defender shall be responsible for overseeing the
assignment of cases to CJA Panel attorneys. This function will be
performed by the CJA Administrator within the Federal Public Defender's
office.
B. Attorneys will be assigned to one of two primary panels, one providing
service for the United States District Court in Tacoma and the second
providing service for the United States District Court in Seattle. In the
event that the CJA Administrator is unable to locate counsel from the list
maintained in one city, assignment will be made to the next available CJA
Panel attorney on the list maintained for the other city.
C. In addition to the two primary panels, the Federal Public Defender shall
maintain lists of attorneys who will provide representation for individuals
who appear before judges in outlying courts located within the district.
Attorneys assigned to those lists shall be selected by the Standing
Committee in accordance with the procedures and requirements of this
Plan. Consistent with the terms and requirements of Appendix B and
Appendix C, the Federal Public Defender shall maintain lists of attorneys
for assignment to appeals and capital cases.
D. The Federal Public Defender may create an emeritus CJA Panel.
Attorneys will be eligible for inclusion on the emeritus panel when they
have served with distinction on the active panels or have otherwise
demonstrated excellence in the practice of federal criminal defense and
wish to be active in CJA matters but are not able or willing to accept
appointments on a rotational basis due to other significant constraints on
their time. Members of the emeritus panel who are unable to take cases in
a given year are expected to contribute in other ways, such as serving as
mentors for other CJA Panel members and/or presenting at training
seminars. The Federal Public Defender shall review the emeritus panel at
least annually to ensure that all members remain capable and eligible for
inclusion.
E. Location of attorneys for individual cases shall be undertaken by the CJA
Administrator. To facilitate this process, the appropriate court agency shall
notify the CJA Administrator of the need for counsel as soon as possible.
The CJA Administrator shall locate counsel by contacting attorneys from
the appropriate list in rotational order. The CJA Administrator, in
cooperation with the Federal Public Defender, shall develop a method of
contacting attorneys that is most likely to reach them quickly.
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F. Appointments should be made in a manner that results in both a balanced
and equitable distribution of appointments among members of the CJA
Panel, and quality representation for each CJA defendant. At the direction
of the court or the Federal Public Defender, an attorney may be assigned
out of order for a case which requires particular expertise, is of particular
complexity or severity, or involves a client with unusual needs. If the
distribution of cases over the course of a year becomes unbalanced or
inequitable, the CJA Administrator, in conjunction with the Federal Public
Defender, may on occasion deviate from the rotational system by skipping
an attorney or attorneys to achieve a more balanced and equitable
distribution of assignments. Such deviation from the rotational order shall
be documented in CJA records.
G. Attorneys on the emeritus panel may be called for cases which require
particular expertise, are of particular complexity or severity, or involve
clients with unusual needs.
H. In the interests of justice, where continuity of representation is a factor or
other special circumstances exist, the court may appoint an attorney who
is not on the CJA Panel. Such attorneys shall possess such experience
and character as would qualify him or her for admission to the district's
CJA Panel in the ordinary course.
I. Assignment and compensation of counsel for new representations (e.g.,
revocation proceedings, mental condition hearings) and hybrid
representations (e.g., standby counsel) shall be made in accordance with
the requirements of the Guide, Vol 7A, § 220.20-.55.
J. The CJA Unit shall maintain master lists of CJA appointments, which will
include the date of each appointment, the case name and the date of each
refusal (“pass”) by a CJA Panel attorney, as well as statistical information
reflecting the respective percentages of cases assigned to the Federal
Public Defender and the CJA Panel.
XV. Duties of CJA Panel Members
A. Standards and Professional Conduct
1. CJA Panel members must provide high quality representation
consistent with the best practices of the legal profession and
commensurate with those services rendered when counsel is
privately retained. See Polk County v. Dodson, 454 U.S. 312, 318
(1981) (“‘Once a lawyer has undertaken the representation of an
accused, the duties and obligations are the same whether the
lawyer is privately retained, appointed, or serving in a legal aid or
defender program.’” (quoting ABA Standards for Criminal Justice
section 4-3.9 (2d ed. 1980)).
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2. Attorneys appointed under the CJA must conform to the highest
standards of professional conduct, including but not limited to the
Washington State Rules for Professional Conduct.
3. A CJA Panel member must notify within 30 days the CJA
Administrator and the Federal Public Defender, as chair of the CJA
Committee, when any licensing authority, grievance committee, or
administrative body has taken action against the panel member, or
when a finding of contempt, sanction, or reprimand has been
issued against the panel member by any state or federal court.
B. Training and Continuing Legal Education
1. Attorneys on the CJA Panel are expected to remain current with
developments in federal criminal defense law, practice, and
procedure, including the Recommendation for Electronically Stored
Information (ESI) Discovery Production in Federal Criminal Cases.
2. Attorneys on the CJA Panel are expected to attend trainings
sponsored by the Federal Public Defender, including training on the
use of technology and electronic discovery.
3. Attorneys on the CJA Panel will be guided in their practice by the
Federal Adaptation of the National Legal Aid and Defender
Association Performance Guidelines for Criminal Defense
Representations. A copy of these standards shall be posted on the
Federal Public Defender website.
4. CJA Panel members must attend continuing legal education hours
relevant to federal criminal practice and training relevant to the
management of electronic discovery and technology in the court
room during the three year period preceding their review for
continued participation on the Panel.
5. 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. CJA Panel attorneys must have facilities, resources, and
technological capability to effectively and efficiently manage
assigned cases, and participate in regular training with respect to
the effective use of such technology.
2. CJA Panel attorneys must comply with the requirements of
electronic filing and eVoucher.
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3. CJA Panel attorneys must know and abide by procedures related to
requests for investigative, expert, and other services.
D. Continuing Representation
Once counsel is appointed under the CJA, counsel will continue the
representation until the matter, including appeals or review by
certiorari, is closed; or until substitute counsel has filed a notice of
appearance; or until an order is entered allowing or requiring the
person represented to proceed pro se; or until the appointment is
terminated by court order. If trial counsel prefers to withdraw in
favor of new counsel for the appeal, trial counsel should move to
withdraw in the Court of Appeals and ask for the appointment of
substitute counsel but only after filing the notice of appeal in the
district court and preserving the client’s rights in the appeal.
E. Case Budgeting
In non-capital representations of unusual complexity that are likely
to generate claims for compensation in excess of 300 times the
prevailing CJA Panel attorney non-capital hourly rate, rounded up
to the nearest thousand, the court should require development of a
case budget consistent with the policy of the Ninth Circuit Judicial
Council and the Guide § 230.26.10-20. Counsel must notify the
court as soon as possible if they anticipate that this 300 hour
threshold will be reached. Guide, Vol. 7A, Ch. 2, §§ 230.26.10–20;
Ninth Circuit CJA Policies and Procedures, § III.C.
Representations that are anticipated to exceed $100,000 should be
referred at the earliest opportunity to the circuit CMA.
XVI. Compensation of CJA Panel Attorneys
A. Policy of the Court Regarding Compensation
Providing fair compensation to appointed counsel is a critical
component of the administration of justice. CJA Panel attorneys
must be compensated for time expended in court and time
reasonably expended out of court, and reimbursed for expenses
reasonably incurred.
B. Payment Procedures
1. Claims for compensation must be submitted on the appropriate
CJA form through the court’s eVoucher system.
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2. Claims for compensation should be submitted no later than 45 days
after final disposition of the case, unless good cause is shown.
3. The CJA Administrator or their designee will review the claim for
mathematical and technical accuracy and for conformity with the
Guide, Vol. 7A and, if correct, will forward the claim for
consideration and action by the presiding judge.
4. Absent extraordinary circumstances, the court should act on CJA
compensation claims within 30 days of submission, and vouchers
should not be delayed or reduced for the purpose of diminishing
Defender Services program costs in response to adverse financial
circumstances.
5. Except in cases involving mathematical corrections, no claim for
compensation submitted for services provided under the CJA will
be reduced without affording counsel notice and the opportunity to
be heard.
6. The court, when contemplating reduction of a CJA voucher for
other than mathematical reasons, should refer the voucher to the
CJA Standing Committee for review and recommendation before
final action on the claim is taken. See Appendix A of this Plan.
7. Notwithstanding the procedure described above, the court may, in
the first instance, contact appointed counsel to inquire regarding
questions or concerns with a claim for compensation. In the event
that the matter is resolved to the satisfaction of the court and CJA
Panel member, the claim for compensation need not be referred to
the CJA Standing Committee for review and recommendation.
XVII. Investigative, Expert, and Other Services
A. Financial Eligibility
Counsel for a person who is financially unable to obtain
investigative, expert, or other services necessary for an adequate
defense may request such services 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. Upon finding that the services
are necessary, and that the person is financially unable to obtain
them, the court must authorize counsel to obtain the services.
B. Applications
Requests for authorization of funds for investigative, expert, and
other services must be submitted in an ex parte application to the
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court (using the court’s eVoucher system) and must not be
disclosed except with the consent of the person represented or as
required by law or Judicial Conference policy. A court may choose
to have applications considered by a non-presiding judge.
C. Compliance
Counsel must comply with Judicial Conference policies set forth in
the Guide, Vol. 7A, Ch. 3, and with the policies of the Judicial
Council of the Ninth Circuit.
D. Review of the Rejection of Requests for Services
In the event that a judge indicates an intention not to approve, in
whole or in part, for services requested or rendered under this
paragraph, counsel may request review and recommendation by
the Standing Committee pursuant to the procedures set forth in
Appendix A.
XVIII. Appointment of Counsel and Case Management in CJA Capital Cases
The appointment of counsel and case management in capital cases is set
forth in Appendix C to this Plan, and must be read in conjunction with
18 U.S.C. §§ 3005, 3006A, and 3599, and Guide, Vol. 7A, Ch. 6, and the
Criminal Justice Act Policies and Procedures for the Ninth Circuit adopted
on October 20, 2016.
XIX. Effective Date
This Plan will become effective when approved by the Judicial Council of
the Ninth Circuit.
ADOPTED BY THE JUDGES OF THE WESTERN DISTRICT OF WASHINGTON.
A
RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE
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APPROVED BY THE JUDICIAL COUNCIL OF THE NINTH CIRCUIT ON FEBRUARY
16, 2017.
__________________________________
CHIEF JUDGE, COURT OF APPEALS
