IOP § II(D): Appointment of Counsel
Rules of Appellate Procedure and Internal Operating Procedures of the Eighth Circuit — Internal Operating Procedures: II. Attorneys
1. Criminal Justice Act
The Criminal Justice Act of 1964, 18 U.S.C. §§ 3001-3013, authorizes the payment of compensation to counsel appointed to represent indigents in criminal cases, habeas corpus cases, and other designated proceedings. Id. § 3006A(d). Information on hourly rates and compensation maximums can be found on the court’s website under the “CJA Information & Forms” button. The Eighth Circuit Plan to Implement the Criminal Justice Act of 1964 regulates the appointment of attorneys. Counsel may find the Plan at the "Rules and Publications" button on the court's website. In direct criminal appeals and habeas corpus cases in which the district court or the circuit court has granted a certificate of appealability, trial counsel is reappointed automatically on appeal. In all other cases, counsel is appointed only by order of the court, and a party or a party’s counsel must file a formal motion with the clerk seeking appointment on appeal. The clerk forwards motions for appointment of counsel to an administrative panel. If the motion is granted, the clerk enters the order of appointment and sends the appointed attorney the necessary voucher and login information to the eVoucher system with appropriate instructions. When the case is placed on the oral argument calendar, a travel voucher will be sent through CM/ECF to counsel who must travel by air to oral argument, allowing counsel to use a designated travel agent and to charge the airfare directly to the court’s designated CJA credit card account. Counsel are requested to notify the clerk’s office and the travel agency if counsel must cancel any reservation or travel plans. The "CJA Information & Forms" button on court’s website contains helpful information on completing and submitting the voucher, and contains a link to the eVoucher application. Generally, the voucher should not be completed and submitted to the clerk’s office until after the mandate has issued in the case. Vouchers must be submitted through eVoucher, as they cannot be submitted through the CM/ECF filing system. Vouchers are due within 45 days of issuance of the mandate.
To be relieved of an appointment, an attorney must file a motion with the clerk specifying the reason for the request. Motions for leave to withdraw must be served on the client. The court discourages these requests and will authorize withdrawal only for good cause. See 8th Cir. R. 27B(b). Trial counsel requesting permission to withdraw must preserve the client’s right to appeal. Unless the prospective appellant in a criminal case expresses a desire not to appeal in a written notice to the district court, trial counsel must file a timely notice of appeal, enter an appearance, and prosecute the appeal with diligence until the court grants leave to withdraw. Appointed counsel who believes an appeal is without merit must nonetheless file a brief in conformity with Anders v. California, 386 U.S. 738 (1967), Penson v. Ohio, 488 U.S. 75 (1988), and Robinson v. Black, 812 F.2d 1084 (8th Cir. 1987).
Counsel’s obligation under the Court’s Plan to Implement the Criminal Justice Act extends through the filing of a petition for writ of certiorari in the United States Supreme Court. See Revision of Part V of the Eighth Circuit Plan to Implement the Criminal Justice Act, found on the court’s website under “Rules and Publications.”
2. Appointment of Counsel in Civil Cases
The court has the power to appoint counsel in certain civil cases. See 28 U.S.C. § 1915(e)(1). The court exercises its power of appointment sparingly, primarily in civil rights actions. Proof of indigency is required, and the party seeking appointment of counsel must satisfy the court the appeal has merit and is not frivolous.
No fee is authorized for legal services of counsel appointed under this court’s authority. The court does, however, authorize reimbursement from the Attorney Admission Fee Fund for reasonable out-of-pocket expenses incurred in connection with the appointment. See 8th Cir. R. 47H. Appointed counsel must keep an accurate record of all out-of-pocket expenses incurred and submit an itemized statement to the clerk after issuance of the mandate. The statement should be mailed to the St. Louis clerk’s office for processing; it cannot be submitted through the CM/ECF system or the eVoucher application. Counsel should consult the "Civil Appointment Information” button on the court’s website for instructions in preparing a claim for reimbursement.