Federal courts defer appointed defense attorney payments amid government shutdown
Less than a week after a border wall funding skirmish sparked a partial government shutdown, federal courts have begun suspending payments to appointed defense lawyers in criminal cases across the country, a move that prompted some grumbling among members of the bar.
Trials and hearings are generally expected to proceed as usual — at least till Jan. 11, the date through which the courts are funded through fee balances and other existing funds. After that, it’s less clear. Federal public defenders will start working without pay, officials said, just as prosecutors, prison guards and U.S. marshals are already doing.
“In the not too distant future, it could really start causing a variety of problems,” said Houston lawyer David Adler, who represents court-appointed attorneys in the Southern District of Texas. “Obviously the government is responsible for holding people detained pending trial, so at some point the funding for all of this is going to disappear or run out and I don’t think anybody has envisioned this sort of doomsday scenario.”
One of the messages that first raised the hackles of defense attorneys in Texas was a Friday email retroactively announcing the suspension of payments to lawyers on the panel appointed to do federal indigent defense work in the U.S 5th Circuit Court of Appeals.
“Due to the lapse in appropriations, FY 2019 Criminal Justice Act (CJA) panel attorney payments were suspended beginning December 24, 2018,” administrative attorney Katherine Clark wrote in a message to the panel. “When appropriations become available, panel attorney payments will be made in the normal course.”
Officials confirmed the pay delay applies everywhere, regardless of whether every federal court has specifically notified panel attorneys.
Typically, federal courts don’t compensate appointed attorneys until the case is concluded. So, while prosecutors and public defenders earn regular salaries along the way, appointed lawyers often wait months or years for a lump payment. The shut-down could just stretch that wait out further for lawyers already earning less than they might elsewhere in the justice system.
“People in general probably aren’t going to be sympathetic to lawyers getting paid,” said veteran attorney Robb Fickman. “But we are at risk of losing good lawyers if they aren’t timely paid.”
While Fickman is appointed on just a handful of federal cases, he said the pay suspension could be much more of a hardship for attorneys — such as capital defense lawyers — who make federal appointments a sizable portion of their workload.
Courts still ‘open for business’
As of now, criminal court proceedings continue largely uninterrupted.
“The courts are open for business, with minor adjustments only as needed to accommodate the impact on others needed for our work, such as the need to defer payments to lawyers appointed to represent indigent defendants,” Houston-based Chief U.S. District Judge Lee H. Rosenthal said Friday. “Jury trials and hearings already scheduled will be held unless individual judges order otherwise.”
Some districts, however, have announced the suspension of civil cases, including the Manhattan-based federal courts handling lawsuits against President Donald Trump.
Citing prosecutor workforce reductions stemming from the shutdown, Chief U.S. District Judge Ruben Castillo in the Northern District of Illinois put out an order Wednesday that would immediately suspend for two weeks all non-criminal cases in which the federal government, its agencies, officers or employees are “in any way a named party” as well as any civil cases handled by federal lawyers.
The Northern District of Texas put out a narrower notice, simply warning of the possible impacts on non-criminal cases, confirming the pay suspension for appointed attorneys, and noting that jurors will continue to be paid.
“Unless you are otherwise notified in a particular case, proceedings and deadlines will occur as scheduled,” North Texas court officials wrote in an email sent Wednesday. “Civil cases that involve an attorney from an Executive Branch agency are the most likely ones to be affected by the shutdown.”
The hope of pay eventually
While executive branch employees aren’t taking home pay right now, federal public defenders — like court-appointed attorneys — are paid through the judiciary. Though they’ve been asked to curtail any unnecessary spending, for now they’re still getting checks. In part that’s because of cash layouts saved by the move to delay payments to appointed lawyers, according to Marjorie Meyers, who heads up the federal public defender’s office in Houston.
“After Jan. 11,” she said, “then we would be like the rest of the unfunded agencies so we would have to determine who would be essential — which I anticipate is everybody — and then we would be working without pay with the hope that we would be paid eventually.”
David Sellers, a spokesman with the D.C.-based Administrative Office of the U.S. Courts, said it would be “speculative and premature” to guess “what happens two-plus weeks from now.”
But, according to Meyers, because they’re considered essential employees, public defenders wouldn’t be furloughed and would instead be expected to work without pay like other law enforcement employees.
“The only reason that we’re funded is that the judiciary has money through fees,” she said. “So every time there’s a shutdown, the judiciary has money to keep running for a couple weeks. The Department of Justice is not funded so they were paid yesterday — but as of Monday they’re working with a promise to pay.”