The Criminal Justice Act (CJA) requires that representation be provided to financially eligible persons for proceedings and matters covered by the CJA. Each district's CJA plan specifies how representation will be provided under the Act for mandatory and discretionary appointments and for matters the court determines to be “ancillary matters appropriate to the proceedings.” [18 U.S.C. §§ 3006A(a)(1)-(2)(c)] [Guide, Vol. 7, §§ 210.20.10-210.20.30]
A person financially eligible for representation should be provided with counsel as soon as feasible after being taken into custody, when first appearing before the court or U.S. magistrate judge, when formally charged, or when otherwise entitled to counsel under the CJA, whichever occurs earliest. [Guide, Vol. 7, § 210.40.10] A person for whom counsel is appointed shall be represented at every stage of the proceedings from the person's initial appearance before the U.S. magistrate judge or the court through appeal, including ancillary matters appropriate to the proceedings.
The U.S. magistrate judge or the court shall appoint separate counsel for persons having interests that cannot properly be represented by the same counsel, or when other good cause is shown. [18 U.S.C. § 3006A(b)]
If an attorney is appointed to represent more than one person, a separate order of appointment shall be entered with respect to each person. An attorney who represents joint defendants may be compensated for services up to the statutory maximum for each person represented. If the case involves extended or complex representation, the attorney may be entitled to additional compensation above the statutory maximum rate.
The determination of eligibility for representation under the CJA is a judicial function to be performed by the court or U.S. magistrate judge after making appropriate inquiries concerning the person's financial condition. Unless it will result in undue delay, fact-finding concerning the person's eligibility for appointment of counsel should be completed prior to the person's first appearance in court. [Guide, Vol. 7, § 210.40.20(a), (b)]
The person seeking appointment of counsel has the responsibility of providing the court with sufficient and accurate information upon which the court can make an eligibility determination. [Guide, Vol. 7, § 210.40.20(f)] Other officers or employees of the court may be designated by the court to obtain or verify the facts upon which such determination is to be made. However, employees of law enforcement agencies or U.S. attorney offices should not participate in the completion of the Form CJA 23 (Financial Affidavit) or seek to obtain information from a person requesting the appointment of counsel concerning the person's eligibility. [Guide, Vol. 7, § 210.40.20(c)]
If at any time after the 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 protected as a privileged communication, the counsel will advise the court. [Guide, Vol. 7, § 210.20.30]
Determination of Financial Eligibility for Representation under the CJA Standards for Eligibility [Guide, Vol. 7, § 210.40.30(a)-(c)]
A person is considered "financially unable to obtain counsel" within the meaning of the CJA [18 U.S.C. § 3006A(b)] if the person's net financial resources and income are insufficient to obtain qualified counsel. In determining whether such insufficiency exists, consideration should be given to:
Any doubts as to a person's eligibility should be resolved in the person's favor; erroneous determinations of eligibility may be corrected at a later time. At the time of determining eligibility, the court or U.S. magistrate judge should inform the person of the penalties for making a false statement, and of the obligation to inform the court and the person's attorney of any change in financial status.
Partial Eligibility [Guide, Vol. 7, § 210.40.40]
If a person's net financial resources and income anticipated prior to trial are in excess of the amount needed to provide the person and that person's dependents with the necessities of life and to provide the defendant's release on bond, but are insufficient to pay fully for retained counsel, the judicial officer should find the person eligible for the appointment of counsel under the CJA and should direct the person to pay the available excess funds to the clerk of the court at the time of such appointment or from time to time thereafter.
Family Resources [Guide, Vol. 7, § 210.40.50]
The initial determination of eligibility should be made without regard to the financial ability of the person's family unless the family indicates willingness and financial ability to retain counsel promptly. At or following the appointment of counsel, the judicial officer may inquire into the financial situation of the person's spouse (or parents, if the person is a juvenile) and if such spouse or parents indicate their willingness to pay all or part of the costs of counsel, the judicial officer may direct deposit or reimbursement.
Representation under each district's CJA plan shall include counsel and investigative, expert, and other services necessary for adequate representation. Each district plan shall include a provision for private attorneys [18 U.S.C. § 3006A(a)(3)] [Guide, Vol. 7, § 210.10.20]. Private attorneys furnishing representation under the plan shall be selected from a panel of attorneys designated or approved by the court, or from a bar association, legal aid agency, or defender organization furnishing representation pursuant to the plan.
An attorney who is not a member of the CJA panel may be admitted to the panel pro hac vice and appointed to represent a CJA defendant. This determination is made by the presiding district judge (or the chief judge if a district judge has not yet been assigned to the case). Pro hac vice appointments should be made only in exceptional circumstances. [Guide, Vol. 7, § 210.30.30]