Handbook VI.D: Appointment of Counsel

1. Time and Manner of Appointment

The CJA, 18 U.S.C. § 3006A, does not provide for the appointment of counsel in non-criminal cases. Thus, even though a party in a civil appeal may be granted leave to proceed in forma pauperis, counsel will not ordinarily be provided by the Court. The appellant may file a motion for the appointment of counsel. If the Court grants the motion or elects to appoint amicus curiae in lieu of counsel, it may select a member of a legal aid organization or a law school clinical program, or it may appoint an attorney who has indicated a willingness to serve without compensation in non-criminal cases. The decision whether to appoint counsel or an amicus in a civil case is usually made by the special panel, and the Court will appoint a private attorney or amicus only when a panel determines it is in the interest of the Court.

Counsel who wish to be considered for appointment in civil cases should write to the Clerk, providing information about their background and experience, and listing any cases they have previously handled in this Court. Counsel and amici appointed in civil appeals serve without compensation. Counsel are encouraged to volunteer their services for civil matters.

2. Withdrawal

Appointed counsel who are unable to continue to represent an appellant in a civil or criminal appeal must promptly move this Court to withdraw, stating specific reasons.

In a criminal appeal, if counsel wishes to withdraw because of a belief there is no merit to the appeal, counsel should refer to Anders v. California, 386 U.S. 738 (1967), and Suggs v. United States, 391 F.2d 971 (D.C. Cir. 1968), for guidance. Counsel in a criminal appeal also should confer with the Office of the Federal Public Defender to help assure uniformity of practice in this regard.

Counsel must serve the appellant with the motion to withdraw. When filing a motion to withdraw because of lack of merit to the appeal in a criminal case, counsel also must submit to the Court and serve on the appellant, but not on government counsel, a confidential memorandum under seal setting forth the points the appellant wishes to assert, any other points counsel has considered, and the most effective arguments counsel can make on the appellant's behalf. The Court gives the appellant 30 days to respond to this memorandum; if the Court thereafter concludes there are no meritorious issues on appeal, it will grant counsel's motion to withdraw and ordinarily dismiss the appeal.

3. Duties in Criminal Appeals

Upon notice of appointment in a criminal appeal, counsel must so advise the defendant, and if the defendant is incarcerated, counsel must explore the possibility of obtaining release pending appeal. See infra Part VIII.C. Counsel also should check the district court record to ensure that the transcript has been or is being prepared. It is trial counsel's duty to order the transcript when the notice of appeal is filed, but counsel appointed on appeal must make sure that all necessary portions of the transcript have been designated. The failure of trial counsel to order the necessary transcript does not justify an extension of time for filing defendant’s brief.

Appointed counsel ordinarily should interview the defendant in person at least once if the defendant is within the jurisdiction. If the defendant is incarcerated outside the jurisdiction, the Court may authorize counsel to visit the defendant at his or her place of incarceration. Such visits must be approved in advance and must be fully justified in order for counsel to be reimbursed. Requests for such advance authorization are first to be submitted to the Federal Public Defender.

If the defendant is dissatisfied with court-appointed counsel's handling of the appeal and wishes counsel to withdraw, counsel must file a motion for leave to withdraw, and the Clerk will refer the matter to the Legal Division for presentation to a panel. See infra Part VII.D. The Court does not respond favorably to general complaints about counsel, only to specific grievances.

Counsel’s responsibility when appointed in a criminal case extends through the filing of a nonfrivolous petition for a writ of certiorari. Appointed counsel must advise the defendant of the right to file a certiorari petition and counsel’s opinion as to the merit and likelihood of success in obtaining such a writ. If the defendant asks counsel to file a petition for writ of certiorari and there are nonfrivolous grounds for doing so, counsel must prepare and file one. If counsel determines that there are no nonfrivolous grounds for filing a petition, counsel must, within 20 days of the entry of judgment, notify the defendant in writing that counsel will not file a petition, briefly explaining why. Counsel must also inform the defendant about the procedures both for filing a petition for certiorari pro se and for asking this Court to appoint new counsel to prepare a petition for certiorari. Counsel should caution the defendant that it is unlikely the Court will appoint new counsel and that the client should be prepared to file a petition for certiorari pro se within the prescribed time. Once counsel has provided this notice to the client, counsel must notify the Court that counsel’s representation has ceased. (A model letter withdrawing from representation at the certiorari stage can be found on the Court’s website.) The Clerk will notify the defendant in writing of the effective date of the termination of counsel’s appointment. The cost of this work is recoverable in this Court pursuant to the original appointment, and counsel may not submit his or her voucher until all work is completed. Failure to comply with the foregoing procedures may result in the Court’s refusal to approve counsel’s voucher.

4. Compensation

The CJA prescribes the rate at which appointed counsel is compensated for time spent in court, and for time spent on the case out of court. While total compensation is limited to a specific dollar amount in direct criminal appeals and collateral proceedings, the Chief Judge, or another judge designated by the Chief Judge, may authorize payments in excess of these limitations. Awards of excess compensation are not made lightly in view of budgetary constraints, and require strong justification and documentation.

Counsel also may be reimbursed for certain out-of-pocket expenses, as provided by the CJA Guidelines, which can be found on the Court’s website. General office costs are not reimbursable.

Counsel must submit claims for reimbursement within 45 days of the date after which no further action before this Court or the Supreme Court is possible. Counsel's services and expenses must be itemized on the electronic voucher form in the CJA eVoucher system, which can be accessed from the Court’s website. The Clerk reviews the form for mathematical and technical accuracy and for conformity with applicable regulations. The completed form is then sent for approval to the judge who wrote the opinion in the case, or, if no opinion was issued, to the presiding judge of the panel.