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UNITED STATES v. TUTINO

May 13, 1976

UNITED STATES of America
v.
Ralph TUTINO et al., Applications by six attorneys (designated as Messrs. A, B, C, D, E and F for purposes of this opinion) for allowances under the Criminal Justice Act, Title 18, United States Code, § 3006A


Irving Ben Cooper, District Judge.


The opinion of the court was delivered by: COOPER

IRVING BEN COOPER, District Judge.

We have before us six completed vouchers and accompanying affidavits submitted under the Criminal Justice Act (hereinafter occasionally referred to as "CJA" or "the Act") by court-appointed attorneys ("petitioners") from the CJA panel. Each attorney represented an indigent defendant in the trial of United States v. Tutino, et al. (75 Cr. 1038), which involved an 18-count indictment that named 17 defendants. Thirteen defendants eventually went to trial on November 10, 1975. Seven weeks later, on December 23, 1975, the jury returned its verdict, acquitting all defendants on all charges. While this is neither the time nor the place to indicate our impressions of the causes which induced the verdict, we are obliged to point out that the verdict was hardly due to the efforts of the majority of the attorneys for the defense. The amounts requested in these vouchers range from $8,580 to $11,185.

 We have had occasion to express with great pride the deep satisfaction that has come to us from the professional service rendered by members of our profession who have undertaken, at considerable personal sacrifice the representation of indigent litigants. We have frequently done so over the years in open court and in remarks on file in the clerk's office. *fn1" Clearly their labors without stint brought forth exemplary professional performance, assured in large measure by an abiding sense of dedication to their calling. We certainly are not so fortunate here. In sharp contrast, we were disquieted by what confronts us in some of the instant applications for attorney's fees. Several of the petitioners lacked that degree of quality in their preparation and in-court performance to meet even minimal standards. As a trial judge for 36 years we feel qualified somewhat to make such an estimation. *fn2"

 While thankfully it happens most infrequently in this Court, we devoutly trust that in the future we may be spared the cheap antics, the unprofessional disregard of decency, the cruel onslaught on fair play with which many lawyers for the defense engaged. To make matters worse, most of them demonstrated conclusively that they did not have even a nodding acquaintance with humility. We were aghast. The problem remains with us: to hold the offenders to account if sufficient proof can be marshaled to make the charges "stick."

 I

 We come now to a consideration of what is before us on the instant applications. It must be distinctly understood that our approach to the merits of the instant applications is in only one direction: the professional services rendered by each petitioner in behalf of his client-defendant. No other factor is being considered.

 In 1964 Congress enacted the Criminal Justice Act *fn3" which set forth a system to provide effective legal assistance to persons financially unable to retain counsel. In brief, the provisions of the Act governing compensation of attorneys prescribed $15 per hour for time expended in court or before the United States Magistrate and $10 per hour for time spent out of court. The ceiling was $500 in felony cases and $300 in misdemeanor cases. Payment in excess of the maximum limits was authorized under the 1964 Act "in extraordinary circumstances" if necessary to provide "fair compensation" for "protracted representation." See generally, 1964 U.S.Code, Cong. and Adm.News, p. 2990 et seq. ; Note, 9 A.L.R.Fed. 569, 573; Note, 41 N.Y.U.L.Rev. 758 (1966).

 In 1970 Congress amended the Act, expanding its coverage, *fn4" providing for public defender services, *fn5" broadening the availability of public funds for defense services, *fn6" increasing the hourly rates of compensation to $30 per hour for "in-court" services and $20 per hour for "out-of-court" services, *fn7" raising the statutory limit of counsel's compensation from $500 to $1,000 in felony cases and from $300 to $400 in misdemeanor cases, *fn8" and permitting compensation in excess of the limit under certain circumstances.

 It is clear that the 1970 amendments significantly modified the Act. Nevertheless it may be fairly stated that the Act's underlying purpose, before and after modification, was the same: to assure competent representation of indigent defendants. United States v. O'Clair, 451 F.2d 485 (1st Cir. 1971); Ray v. United States, 367 F.2d 258 (8th Cir. 1966); United States v. James, 301 F. Supp. 107 (W.D.Tex. 1969). Moreover, several decisions make it plain that the fees allowable under the Act did not, and were not intended to, provide full compensation. United States v. Thompson, D.C., 361 F. Supp. 879, 887 (Bazelon, C.J.); United States v. Hildebrandt, 420 F. Supp. 476 (S.D.N.Y., 1975) (MacMahon, J.). Further, the Act will not be construed "as a sort of hunting license on the part of lawyers to garner fees." United States v. Schuffman, Dkt. # 75 Cr. 506 (S.D.N.Y., March 4, 1976) (Weinfeld, J.).

 The most important section of the amended Act (for present purposes) provides in substance:

 
" Payment in excess of any maximum amount provided in paragraph (2) of this subsection may be made for extended or complex representation whenever the court in which the representation was rendered . . . certifies that the amount of the excess payment is necessary to provide fair compensation and the payment is approved by the chief judge of the circuit." 18 U.S.C. § 3006A(d)(3) (emphasis added)

 In interpreting this section, two important threshold requirements have been established. Once these basic requirements have been satisfied, there is a dearth of applicable guidelines, however, for determining "fair compensation."

 The first threshold requirement is that the attorney seeking compensation must provide the trial Judge with an application sufficiently detailed to allow an exercise of informed judicial discretion. United States v. Thompson, supra; United States v. Naples, 266 F. Supp. 608 (D.D.C. 1967). Second, the trial Judge, when presented with a sufficient application in the appropriate case, must find that it involved "extended or complex" representation. United States v. Thompson, supra. Here, we have determined that the CJA vouchers are generally sufficient to permit the exercise of that discretion in an informed manner. Although we found that the trial issues were not particularly complex, they were in the main somewhat complicated and presented, on the facts and law applicable thereto, a sharp challenge to an advocate alert, informed and industrious. In addition, the trial was extended, lasting almost two months. Consequently, we hold the threshold criteria have been met.

 Beyond these prerequisites however there is a paucity of decisional authority on standards for evaluating excess compensation. It is clear the Act did not intend that

 
"trial judge[s] . . . sit as clericals, doing nothing more than multiplying hours times the statutory rate to arrive at a fee award; nor that the statutory limitation be waived in every case in which compensation for counsel's services, if computed at maximum hourly rates, would exceed statutory limits. The act still calls for an informed judicial determination based upon the facts of the individual case." United States v. Thompson, 361 F. Supp. at 884.

 The few reported decisions which established standards for determining excess compensation were decided under the pre-1970 Act. However, the factors identified in those cases should be accorded weight in the present circumstances, particularly in the absence of more definitive statutory standards. In the present opinion we considered to a great extent the factors identified in United States v. James, supra wherein the following criteria were set out:

 
"the amount, character and complexity of work required; responsibilities involved; manner in which duties were performed; knowledge, skill and judgment required of and used by counsel; professional standing of counsel as reflected by length of time at bar, experience acquired and reputation established . . . ." Id., at 116.

 See United States v. Ursini, 296 F. Supp. 1155 (D.Conn.1968); 9 A.L.R.Fed., at 598-99.

 Within the James criteria, which underpin each of our dispositions below, we considered the response by the attorneys to legitimate requests by the Court for memoranda of law on significant issues that arose during trial. We feel compelled to note that for the most part our plea for memoranda went unheeded by ...


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