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II.

Vincent presents a different and disturbing problem involving appointment practices in the District Court. Counsel secured an order from a United States Magistrate appointing her to represent her client pursuant to the Criminal Justice Act four months after the client was acquitted of assault on a police officer and related charges. The appointment was made nunc pro tunc as of November 24, 1970, the day on which the attorney had entered her appearance as retained defense counsel. On the basis of this order, the trial judge found that compensation in the amount of $2,620 was necessary to provide "fair compensation" for "extended or complex representation."

This court held in United States v. Perry, App. D.C.

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U.S.

471 F.2d 1069 (1972), that the act does not flatly prohibit nunc pro tunc orders when necessary to effectuate the statutory purposes. A retroactive order, however, can only authorize payment for "representation furnished pursuant to the [implementation] plan prior to appointment." 18 U.S.C. §3006A(b). Thus, for example, when clerical delay prevents the entry of a timely order of appointment or where, as was the case in Perry, substantial services are rendered in this court by counsel already appointed to represent the indigent in the District Court, a nunc pro tunc order clearly comports with the statutory goals. In this case, however, the attorney completed all legal services on behalf of her client in accordance with a retainer agreement presumably negotiated before her appearance was initially entered. Whether the act permits a retroactive appointment in these circumstances was left open in Perry.

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17 But see, United States v. Thompson, 356 F.2d 216 (2d Cir.), cert. denied, 384 U.S. 964 (1965).

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U.S. App. D.C. at _________n. 13, 471 F.2d at 1071, n. 13.

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The Criminal Justice Act is not a form of federal fee insurance guaranteeing payment to counsel for the failure of his retained client to honor a fee agreement. United States v. James, 301 F. Supp. 107, 141 (W.D. Tex. 1969). The civil courts are fully capable of providing the attorney with appropriate redress in such circumstances. That the defendant is allegedly in default of a fee agreement is not, standing alone, sufficient to warrant an appointment under the act.

The statute and this circuit's implementation plan make explicit provision for the case where a defendant, initially represented by retained counsel, seeks the appointment of Criminal Justice Act counsel, 18 U.S.C. §3006A(c), Plan Part III(E).

In pertinent part, the statute provides:

If at any stage of the proceedings, including an appeal, the United States magistrate or court finds that the person is financially unable to pay counsel whom he had retained, it may appoint counsel as provided in subsection (b) and authorize payment as provided in subsection (d), as the interests of justice may dictate. 18 U.S.C. § 3006A(c).

This circuit's implementation plan provides:

If at any stage of the proceedings, the court or magistrate finds that a party is financially unable to pay counsel whom he had retained, or to obtain other counsel, the court or magistrate may appoint counsel in. accordance with the general procedure set forth in this plan. The attorney appointed may claim compensation for services rendered after the date of his appointment pursuant to the Act. The court or magistrate will ordinarily not appoint the same attorney who was previously retained. Plan, Part III(E) (emphasis supplied).

indicative of the detailed matter received in Congress.

These provisions are consideration which this matter

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Professor Oaks' report addressed this issue as well. Report at 52-53, 191-192:

The trouble with appointing retained counsel is that this, in effect, permits the defendant to select his own Criminal Justice Act counsel, whereas all 91 of the district plans expressly forbid this. [19]. If counsel who has been retained and partially paid will be appointed under the Criminal Justice Act, then a defendant with some means who can persuade a lawyer to accept his case for partial payment can, in effect, select a Criminal Justice Act counsel whom he could not afford to pay, whereas a defendant with no means or with small means but no persuasive powers cannot.

If this is occurring in practice, then districts which are permitting it should probably amend their plans. If it is decided that defendants should be awarded some freedom in selecting appointed counsel, a more systematic means of achieving that end should be instituted, one that is available to all defendants. Report at 53.

There is a danger that the client will use the initial retainer to circumvent the prohibition against selection of a particular Criminal Justice Act attorney, or that the attorney will utilize his initial appearance as retained counsel to secure Criminal Justice Act appointments and compensation without regard for the procedures outlined in our implementation plan. Thus, when a defendant represented by retained counsel seeks appointment of that attorney, the defendant and his retained counsel should make full and complete disclosure 20 to the trial court of the pertinent facts, including the circumstances under which counsel was initially retained; the financial arrangements which were agreed upon; the payments, if any, which the defendant has made to the

19 See Plan, Part IV which provides: "The party shall not have the right to select his appointed counsel from the Public Defender Service, from a panel of attorneys or otherwise."

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This disclosure could, of course, be sealed to avoid prejudice.

24-625 - 74 -- 50

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attorney pursuant to the retainer agreement; and the changed conditions which are alleged to constitute grounds for the appointment.21 Only then will the trial court be in a position to make an informed disposition of the application including the determination, in an appropriate case, to invoke the provisions of 18 U.S.C. §3006A(f).2 2

Although our implementation plan provides that "ordinarily" retained counsel will not be appointed as Criminal Justice Act counsel, there are circumstances in which it may be appropriate to appoint the retained attorney to continue in the case. An application for appointment should be made at the earliest opportunity to afford the trial court the widest latitude in balancing the need for uniform application of the act with the interests of justice in a particular case, since, as Professor Oaks has observed:

This dilemma cannot be resolved by the application of a hard-and-fast rule. We recommend that whether the retained attorney should be appointed or whether a new attorney should handle the case once the defendant becomes eligible under the Criminal Justice Act should depend on how much work the appointed attorney has already undertaken and whether it appears that the defendant retained an attorney knowing that he could not complete the payments. It may be useful... to announce as a guideline that, in general, the retained attorney should be appointed only where: (1) He is willing to

21 In United States v. Holt, Crim. No. 1506-67, I returned a similar application to the District Court for further proceedings including disclosure of "any compensation which counsel may have received pursuant to her retainer agreement. . . .'

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22 18 U.S.C. § 3006A(f) sets forth the procedures whereby the trial court may direct the defendant to make a contribution to the total costs of the legal services provided him under the act. While there will be cases in which invocation of this provision is inappropriate, it seems to me that an application on behalf of one who was able to retain counsel in the first instance calls for careful consideration of this alternative. See Report at 188, 191-193.

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accept the appointment on the understanding that his Criminal Justice Act fees will be determined on the basis of the total time he has expended on the case, at Criminal Justice Act rates, less the amount already received from the defendant; and (2) he has completed a substantial amount of work for the defendant that would be wasted, or there are other reasons why substitution of counsel would work to the defendant's disadvantage. Report at 53.

In this case, the application was not only delayed until long after the trial was completed, but also well beyond the maximum period for the submission of Criminal Justice Act vouchers set forth in our implementation plan.23 The entry of the nunc pro tunc order appears on its face to run afoul not only of the general rule against appointing the retained attorney, but also against the limitation period for Criminal Justice Act claims set forth in the implementation plan.

Accordingly, the application will be returned to the District Court in order that inquiry may be made and the record supplemented to reflect the full details of the retainer arrangement, and the reasons reasons for the delay in seeking appointment of counsel under the act. If the court concludes that the purposes of the act and the implementation plan would not be furthered by the appointment of retained counsel or that the delay beyond the claims limitation period set forth in the implementation plan is not excused, I do not believe the statute permits compensation. If the court concludes otherwise, the application is to be reconsidered in accordance with the standards set forth in Thompson, supra, pp. 2-11.

Another disturbing feature of this application is that it lists eighteen hours of "travel time" for which compensation was sought and approved at maximum statutory rates. This

23 The plan provides that "[n]o claim for compensation or reimbursement will be honored unless filed within sixty (60) days of the termination of the representation." Plan, Part V(D).

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