United States District Court, W.D. New York
UNITED STATES OF AMERICA,
DARNYL PARKER, Defendant.
The opinion of the court was delivered by: RICHARD ARCARA, District Judge
DECISION AND ORDER
In April 2000, a twelve-count indictment was filed against the
defendant, Darnyl Parker, and five others. Parker and three of
the defendants were City of Buffalo Police Officers.*fn1
Parker was charged with conspiracy to violate civil rights in
violation of 18 U.S.C. § 241, conspiracy to steal
government-owned property in violation of 18 U.S.C. § 641, theft
of government-owned property and money in violation of
18 U.S.C. § 641, conspiracy to interfere with interstate commerce under
color of official right (Hobbs Act) in violation of
18 U.S.C. § 1951, interference with interstate commerce under color of
official right (Hobbs Act) in violation of 18 U.S.C. § 1951,
possession of firearm in furtherance of a crime of violence in
violation of 18 U.S.C. § 924(c), money laundering in violation of 18 U.S.C. § 1956(a)(3)(A), and conspiracy to possess
with the intent to distribute cocaine in violation of
21 U.S.C. § 846.
Parker retained attorney Mark Mahoney, Esq., to represent him.
During Mr. Mahoney's first appearance on behalf of Parker,
Magistrate Judge Leslie G. Foschio asked Mr. Mahoney whether he
was "fully retained" for the duration of the criminal
proceedings.*fn2 Mr. Mahoney assured Magistrate Judge
Foschio that he was.
The parties appeared for jury selection on September 11, 2001.
However, due to the tragic events of that day, the trial was
adjourned until January 8, 2002. On December 12, 2001, the United
States Probation Office filed a pretrial violation report
alleging that Parker had violated the conditions of his pretrial
release by attempting to tamper with a witness. On December 20,
2001, the Court issued a Decision and Order finding that Parker
had committed the alleged pretrial violation and ordered Parker
detained pending trial.
Trial commenced on January 8, 2002. On that same date, Mr.
Mahoney filed a motion to be appointed as counsel under the
Criminal Justice Act ("CJA"), 18 U.S.C. § 3006A(c). The motion
was filed ex parte and under seal, and consisted of an
affidavit from Mr. Mahoney and a financial affidavit from Parker.
In his affidavit, Mr. Mahoney stated: 7. Darnyl Parker has no funds, and he has no access
to funds or assets of any kind, except his house
valued at $15,000 and automobile valued at $2,500. He
has exhausted his entire retirement savings
("deferred compensation") in order to partially pay
for services rendered to date.
8. Although [Parker] was initially suspended with pay
from the Buffalo Police Department, he is now
suspended without pay as a result of this Court's
finding of tampering. All monies previously received,
including any savings and his deferred compensation
plan, have gone to the costs of representation, child
support, and additional financial support to his two
young grandchildren to whom he is their primary
9. Therefore, while Mr. Parker may have been eligible
for CJA relief prior to this point in time, I
nonetheless subsidized the costs of representation.
With all monies exhausted, and no potential to
receive any more compensation from Mr. Parker, my
effective rate of compensation for tasks already
performed is approximately between $70-75 per hour,
an amount comparable to the rate paid to appointed
CJA counsel. This of course does not include any of
the work that will be needed to be performed in
trying the actual case scheduled for this week, which
will likely cut the effective rate of compensation in
10. Darnyl Parker is now incarcerated and receives no
income from the Buffalo Police Department.
11. Previous to his present incarceration, Mr. Parker
was receiving a pay check from the Buffalo Police
Department, which were [sic] used to support himself,
his family, and pay his legal fees.
See Dkt. No. 417, Aff. of Mark Mahoney dated January 7, 2002,
at ¶¶ 7-11 (emphasis in original).
Parker provided a financial affidavit (CJA Form 23) in which he
claimed that he was "suspended without pay from the Buffalo
Police Dept. [on] 12/01," and that prior to being suspended without pay, his gross
salary was $1,400 per week. See Dkt. No. 417, Financial
Affidavit of Darnyl Parker dated January 7, 2002. He claimed that
he paid $800 per month in child support payments and had $2,000
in credit card debts. Id. In terms of assets, he stated that he
owned a house at 635 Northumberland Avenue, Buffalo, New York,
valued at $15,000, and a car valued at $2,500. Id.
On January 25, 2002, this Court issued an Order stating that it
had insufficient information to rule on the CJA application and
ordered counsel to provide further information. See Dkt. No.
208, Order dated January 25, 2002. Specifically, the Court
requested: (1) a copy of the retainer agreement between Parker
and counsel; (2) an affidavit stating the amount of all payments
made to counsel to date, and the dates when those payments were
made; (3) a copy of the defendant's 2000 and 2001 tax returns;
and (3) the age of each dependant that Parker claimed on his
financial affidavit. In its order, the Court recognized that
appointment of a retained attorney under the CJA is appropriate
in the "unusual case" where "a defendant is no longer able to
afford retained counsel," id. at 3, but noted that such
circumstances should be the exception, not the rule. As the Court
The CJA is not intended to be a "form of federal fee
insurance" guaranteeing payment to counsel when a
client fails to honor a fee arrangement. See
United States v. Herbawi, 913 F.Supp. 170, 172
(W.D.N.Y. 1996) (Feldman, M.J.) (quoting United
States v. Thompson, 361 F.Supp. 879, 887 (D.D.C.
1973), vacated in part, aff'd in part without opinion,
489 F.2d 1273 (D.C. Cir. 1974)). Nor is its purpose to
bail out an attorney who fails to make adequate fee
arrangements before accepting representation.
Id. at 4. The Court also ordered Parker to show cause as to why
the application should remain under seal and ex parte.
On February 4, 2002, Mr. Mahoney filed an ex parte response
addressing the issue of whether the documents should remain under
seal. See Dkt. No. 418. Mr. Mahoney claimed that unsealing the
CJA application would potentially result in "disclosure of
information about the defense of the case or information about
the attorney-client relationship itself, or facts about the
attorney's practice which otherwise would be entitled to be kept
secret." Id. at 2.
On February 15, 2002, Mr. Mahoney responded to the Court's
request for more information regarding the merits of the CJA
application. He provided an affirmation which, for the most part,
was not based upon his personal knowledge. See Dkt. No. 419,
Affirmation of Mark Mahoney dated February 15, 2002. Rather, the
information was based upon Parker's personal knowledge, though
Parker himself did not provide an affidavit. The absence of an
affidavit from Parker was significant because there were
statements made in the CJA application (by Mr. Mahoney) that were
either inaccurate or contradicted statements made in Parker's
financial affidavit. For example, Mr. Mahoney continued to
represent that Parker was financially eligible for CJA
appointment "now that he has been suspended without pay." Id. at 27.
However, contrary to that representation, Parker was no longer
suspended without pay. His suspension had been lifted as of
January 31, 2002, and Parker was using his accrued vacation time
to receive his full salary.*fn3 See Trial Tr. at 5614-17.
Mr. Mahoney also claimed that Parker paid his mother a $950 rent
payment to live in her house. No such rental payment was listed
by Parker in his financial affidavit (CJA Form 23). Nor did
Parker list his grandchildren as dependents in his financial
affidavit, even though Mr. Mahoney claimed that Parker was their
"primary financial source." See Dkt. No. 417, at ¶ 8.
In any event, Mr. Mahoney stated that Parker earned $70,613 in
income in 1998. See Dkt. No. 419, at ¶ 5. No information was
provided as to Parker's salary for 1999 or 2000. In 2001, Parker
was suspended with pay and earned his annual base salary of
$54,000. Id. ¶ 6. Mr. Mahoney stated that Parker had a net
earnings of $1,400 per month, $950 of which he paid to his mother
as rent. Id. at ¶ 8. Mr. Mahoney also stated that Parker owned
two properties a 4-unit rental property at 844 Prospect Avenue
in Buffalo (which was vacant)*fn4 and a house at 635
Northumberland Avenue in Buffalo, where his mother resided. Mr. Mahoney stated that the Northumberland Avenue
property was assessed at $33,100, but claimed that it was only
worth $15,000. Id. at ¶ 10.
Despite the Court's explicit request, Mr. Mahoney failed to
provide a sworn affidavit addressing his fee arrangement with
Parker. Instead, he provided a memorandum addressing the issue.
See Dkt. No. 420. Mr. Mahoney stated that there was no written
retainer agreement with Parker.*fn5 He acknowledged
receiving a $10,000 retainer fee from Parker, eight*fn6
additional payments for $1,000 each, and a payment of $33,225
from Parker when Parker liquidated his retirement account. Mr.
Mahoney did not indicate when any of the payments were made even
though the Court had specifically requested that information. Nor
did he identify the ages of Parker's dependents, as requested.
In an Order dated March 4, 2002, this Court denied Parker's
request for appointment of counsel under the CJA because: (1) the
Court had not been provided with all of the information that was
requested; (2) the information that was provided was inaccurate
(as Parker was in fact getting paid); (3) the information that
was provided showed that Parker was not financially eligible for
appointment of counsel; and (4) Mr. Mahoney had already been paid
"a significant amount of money to represent [Parker]." See Dkt.
No. 279, Decision and Order dated March 4, 2002, at 4. With respect to the amount
of money that Mr. Mahoney was paid, the Court stated
[t]he Court is satisfied that the fee given to
counsel to date is sufficient to ensure that counsel
will be able to adequately represent the defendant
throughout the duration of this trial.
Id. at 4-5. In other words, the Court found that Mr. Mahoney
had already been paid a reasonable fee for his services
($52,225.00 in total) and that further compensation under the CJA
was not warranted. However, because Parker was scheduled to
receive his last pay check on April 11, 2002, the Court advised
Mr. Mahoney that he could renew his application for CJA
appointment at that time. Id. at 5, n. 4.
Although not addressed in the March 4th Decision and Order,
the Court also determined that it was appropriate for the CJA
application to remain under seal until the trial was over so as
to ensure that the defendant suffered no prejudice.*fn7 The
trial ended on March 15, 2002, with the jury finding Parker
guilty of ten of the eleven counts with which he was charged.
On March 14, 2002, Mr. Mahoney moved for reconsideration of
this Court's Order denying appointment under the CJA. On May 20,
2002, the Court denied the reconsideration motion, but granted
CJA appointment effective April 12, 2002, upon finding that
Parker's financial circumstances had changed as of that date because he had received his last pay check from the
Buffalo Police Department.
Mr. Mahoney remained appointed under the CJA until Parker's
sentencing on August 20, 2002. He submitted a CJA voucher for
$19,748.52 for his post-trial work (that is, the work that he
performed after trial until Parker's sentencing). This amount was
far in excess of the $5,200 permitted under the CJA. See
18 U.S.C. § 3006A(d)(2). Nevertheless, the Court recognized that Mr.
Mahoney's work on this case was extensive and approved the
voucher under 18 U.S.C. § 3006A(d)(3). As a consequence, Mr.
Mahoney has been paid a total of $71,973.52 to represent Parker
from his initial appearance in the case until Parker's
Mr. Mahoney appealed the Court's March 4, 2002 Decision and
Order denying his request for CJA appointment. The appeal
proceeded ex parte and under seal, as it had in this Court.
On March 23, 2004, the United States Court of Appeals for the
Second Circuit vacated this Court's March 4th Decision and
Order denying CJA relief and remanded for further proceedings. In
a summary order, the Second Circuit noted this Court's reference
to its "`practice of inquiring into whether counsel has been
`fully retained' for the purposes of all the proceedings in the
case,'" see Summary Order filed March 23, 2004, at 2 (quoting
the Court's January 25th Order), and stated that the Court's
Orders "neither elaborate on the nature or justifications for the referenced practice, nor
directly address the compatibility of such a practice with the
CJA." Id. Without addressing the merits of the CJA application,
the court remanded for further elaboration and reconsideration.
Upon remand, the Circuit suggested that this Court appoint pro
bono counsel "to represent the interests of the District Court
and to represent it in any later appeal." Id. at 3.
On May 11, 2004, the Court appointed Carol E. Heckman, Esq., as
pro bono counsel for the Court in accordance with Second
Circuit's suggestion. On May 18, 2004, a status conference was
held to discuss how the matter should proceed. Upon the Court's
request, Ms. Heckman, counsel for Parker,*fn8 the government
and the Federal Public Defender appeared at the conference. The
Court told counsel that it wanted to further review the record to
determine whether additional briefing was necessary or whether
the matter could be decided based upon the existing record. The
Court also informed counsel that it was inclined to unseal the
proceedings since the trial and appeal had concluded. Counsel was
advised to let the Court know of any objection. The matter was
adjourned until June 9, 2004, at which time the Court advised
counsel that, upon further review of the record, it seemed
appropriate for the Court to issue a decision addressing the
merits of the CJA application, this District's practice of asking counsel whether he or she is "fully retained," and the
compatibility of that practice with the CJA.*fn9
Before addressing the merits of the CJA application, it must be
emphasized that the issue here is whether Mr. Mahoney should have
been appointed as CJA counsel for Parker as of January 8, 2002,
when the application was first made,*fn10 instead of April
12, 2002, when he was actually appointed.*fn11 In other
words, the issue is whether Parker was eligible for CJA
appointment between January 8th and April 12th of 2002.
Furthermore, because Parker's trial and appeal have long since
concluded, there can be no question that Parker received adequate
assistance of counsel. Therefore, at this juncture, the issue is
not whether CJA appointment is necessary to ensure adequate
representation of Parker. Rather, the question is whether Mr.
Mahoney is entitled to further compensation beyond what he has
already been paid. DISCUSSION
I. Standards for Appointment of Counsel
The CJA provides for appointment of counsel for a "financially
eligible person" who is unable to obtain adequate representation.
See 18 U.S.C. § 3006A(a)(1). The defendant bears the burden of
showing that he is "financially eligible" for CJA appointment. To
be "financially eligible" the defendant must be unable to afford
representation, though he need not prove that he is indigent or
destitute. See United States v. O'Neil, 118 F.3d 65, 74 (2d
Cir. 1997), cert. denied, 522 U.S. 1064 (1998); United States
v. Harris, 707 F.2d 653, 660 (2d Cir.), cert. denied,
464 U.S. 997 (1983).
A person is "financially unable to obtain counsel"
within the meaning [of the CJA] if his net financial
resources and income are insufficient to enable him
to obtain qualified counsel. In determining whether
such insufficiency exists, consideration should be
given to (a) the cost of providing the person and his
dependents with the necessities of life, and (b) the
cost of the defendant's bail bond if financial
conditions are imposed, or the amount of the case
deposit the defendant is required to secure his
release on bond.
See Administrative Office of the United States Courts, Guide to
Judiciary Policies and Procedures ("Guide"), vol. VII, at § 2.04.
"Any doubts as to a person's eligibility should be resolved in
his favor; erroneous determinations of eligibility may be
corrected at a later time." Id. Where a defendant has some financial resources, but those
resources are insufficient to fully retain counsel, the
defendant may be eligible for "partial" appointment of CJA
counsel. Section 2.05 of the Guide provides:
If a person's net financial resources and income
anticipated prior to trial are in excess of the
amount needed to provide him and his 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 Act and should direct him to pay
the available excess funds to the Clerk of the Court
at the time of such appointment or from time to time
thereafter. Such funds shall be held subject to the
provisions of subsection (f).
Id. at § 2.05.
The CJA also provides for appointment of an attorney who had
previously been retained by the defendant if the interests of
justice so dictate. Section 3006A(c) provides:
If at any stage of the proceedings, including an
appeal, the United States magistrate judge or the
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) (emphasis added). Parker's CJA application
was made under this provision.
1. Parker Failed to Establish that he was Financially
Eligible for CJA Appointment prior to April 12, 2002 The threshold issue is whether Parker was "financially unable
to pay counsel" at the time that his application was made on
January 8, 2002. See 18 U.S.C. § 3006A(c).
Parker's initial CJA application was premised entirely upon his
purported change in financial circumstances as a result of being
incarcerated for his bail violation. He claimed in his
application that he had "no funds, and . . . no access to funds
or assets of any kind," and was "receiv[ing] no income from the
Buffalo Police Department" as a result of being incarcerated.
Although Parker was initially suspended without pay on January
2, 2002, he was reinstated as of January 31st and continued
to receive his full salary.*fn12 Pay records submitted in
support of Parker's motion for reconsideration show that Parker
continued to receive pay checks during the suspension period.
Specifically, from January 4, 2002 to April 12, 2002 (the day on
which counsel was appointed), Parker received a gross income of
approximately $12,836.25,*fn13 and a net income was
approximately $5,460.09.*fn14 Parker's necessities during this period were minimal because he was incarcerated.*fn15
His children's necessities were addressed by virtue of his
monthly child support payments which were automatically deducted
from his gross salary.*fn16
In terms of other necessities, Mr. Mahoney claimed that Parker
was the primary provider for two of his grandchildren. Parker
himself did not identify those grandchildren as dependants in his
CJA Form 23 Financial Affidavit. Nor did he provide any evidence
attesting to the amount of support that he provided. Those two
grandchildren lived with their mother (Parker's adult daughter,
Jada) in Parker's mother's home. Jada was employed at the
time*fn17 and presumably was able to satisfy her children's
necessities during the period in question.
Parker's net income of over $5,000 during this 14-week period
should have been sufficient to pay counsel even after his
necessities were satisfied. Accordingly, Parker failed to establish that he was
financially eligible for CJA appointment before April 12, 2002.
2. Counsel was Paid a Reasonable Fee
Even if the Court had found that Parker was financially
eligible for CJA appointment before April 12, 2002, the
application still would have been denied. As noted, Mr. Mahoney
sought appointment under 18 U.S.C. § 3006A(c). That provision
permits the Court to appoint an attorney who had previously been
retained, where "the interests of justice" so dictate. See
18 U.S.C. § 3006A(c).
Contrary to Mr. Mahoney's reading of the statute, this
provision does not automatically entitle a defendant to
appointment of counsel under the CJA. Rather, a proper reading of
that provision requires the Court to inquire into the fee
arrangement between counsel and the defendant to determine
whether the "interests of justice" merit CJA appointment. As one
district court explained:
Where . . . the client, in order to pay the fee
demanded by his attorney . . ., depletes his
resources to the point where he has become destitute,
and then seeks the right to prosecute . . . in forma
pauperis, it becomes the duty of the Court to
meticulously examine into the nature and extent of
the services rendered for the purpose of determining
whether or not the fees charged were reasonable under
the circumstances. United States v. Lopez-Flores, 701 F. Supp. 597,
597 (S.D. Tex. 1988) (quotation omitted).
Having conducted such an inquiry in this case, the Court found
that Mr. Mahoney was more than adequately compensated for the
work that he performed. He was paid $52,225.00 by Parker. After
the Court appointed Mr. Mahoney under the CJA effective April 12,
2002, Mr. Mahoney was paid an additional $19,748.52 in CJA funds.
Accordingly, Mr. Mahoney has been paid a $71,973.52 fee to
represent Parker at the district court level.*fn18
Counsel argues that this amount is insufficient, and that
"[c]onservatively, defending this case would require a fee in
excess of $125,000." See Dkt. No. 352, Ex Parte Affirmation of
Mark Mahoney, Esq., dated March 14, 2002, at ¶ 31. The issue is
not whether Mr. Mahoney believes that he was reasonably
compensated for his services. Nor is reasonableness determined in
reference to market rates. Instead, "[r]easonableness as to the
fees charged [by a retained attorney] should be determined in
reference to what [counsel] would have received if [the
defendant] had proceeded in forma pauperis from the onset."
Lopez-Flores, 701 F. Supp. at 597. Indeed, it has long been
recognized that the purpose of the CJA is to provide "fair" but
not "full" compensation. See United States v. Tutino,
419 F. Supp. 246, 248 (S.D.N.Y. 1976); see also United States v. Carnevale, 624 F. Supp. 381, 384 (D.R.I. 1985) ("The
legislative history [of the CJA] reveals an intention to upgrade
compensation not to market levels, but to a degree satisfactory
`to ensure that those attorneys who accept appointments do not
suffer economic hardship.'") (quoting H. Rep. No. 98-764,
98th Cong., 2d Sess. 1, reprinted in 1984 U.S. Code Cong. &
Ad. News 3667, 3668) (emphasis added); United States v. Self,
818 F. Supp. 1442, 1446 (D. Utah 1992) ("[A]ppointments under the
Criminal Justice Act `are to protect the rights of the indigent
accused, and they are neither to be sought nor made for the
purpose of providing income to attorneys.'") (quoting United
States v. Cook, 628 F. Supp. 38, 41 (Colo. 1985)).
If Mr. Mahoney had been appointed as CJA counsel at the outset,
he would not have received the purported market rate of $125,000,
or even the $71,973.52 fee that was actually paid. The
presumptive maximum compensation permitted under the CJA is
$5,200. See 18 U.S.C § 3006A(d)(2). Mr. Mahoney was paid more
than 13 times the presumptive maximum. In United States v.
Calle, 178 F. Supp. 2d 309, 311 (E.D.N.Y. 2001), the district
court denied an application by retained counsel for appointment
under the CJA where counsel had already been paid nearly the
presumptive maximum CJA compensation. Similarly, in United
States v. Alexander, 742 F. Supp. 54 (N.D.N.Y. 1990), the
district court denied an application for CJA appointment by a
retained attorney who had been paid $11,000, more than twice the
presumptive maximum under the CJA. See also United States v. Littlehale, 2004 WL
1087374 (S.D. Ind. Apr. 13, 2004) (denying counsel's request for
$125,000 in CJA fees, but granting payment for $5,200).
Of course, a court can waive the $5,200 presumptive maximum if
it certifies that counsel's representation was "extended or
complex" and the amount sought is necessary to provide for "fair
compensation" to counsel. See 18 U.S.C. § 3006A(d)(3). Indeed,
the Court invoked this provision when it certified Mr. Mahoney's
voucher for $19,748.52. However, the Court's generosity toward
Mr. Mahoney must end there. Mr. Mahoney's work in this case was
not so extensive as to require compensation beyond what he has
already been paid.
This Court has an obligation to ensure that CJA funds are not
abused, either intentionally or unintentionally. United States
v. Martinez, 385 F. Supp. 323, 326 (W.D. Tex. 1974). The Court
is also mindful that the public funds available for CJA services
are "severely limited." See United States v. Thompson,
361 F. Supp. 879, 888 (D.D.C. 1973), vacated in part, aff'd. in part
without opinion, 489 F.2d 1273 (D .C. Cir. 1974), and overruled
on other grounds by United States v. Hunter, 394 F. Supp. 997
(D.D.C. 1975). Given the substantial amount of money that Mr.
Mahoney has already been paid, it would be an abuse of CJA
resources to compensate him for anything beyond what he has
already received.*fn19 As an experienced defense attorney, Mr. Mahoney was fully aware
of the costs involved in defending Parker. He was also fully
aware of the extent of Parker's financial resources. He readily
admits that he agreed to take the case with the understanding
that he "was not going to make a significant amount of profit on
the matter." See Dkt. No. 418, at 3. He cannot now claim that
it is unfair for this Court to hold him to an agreement that he
himself found acceptable. See United States v. James,
301 F. Supp. 107, 141 (W.D. Tex. 1969) (CJA should not be used "to pay
an attorney who took the case with open eyes," knowing his
client's financial circumstances at the time). II. District's Practice of Inquiring into the Fee
In this Court's earlier Orders denying CJA relief, the Court
referenced this District's practice of inquiring into whether an
attorney is "fully retained" for the purposes of the criminal
proceedings. The Second Circuit remanded for an elaboration of
that practice, as well as consideration as to whether the
practice is compatible with the CJA.
This District has a practice of asking retained counsel during
his or her initial appearance in a criminal case whether he or
she is "fully retained" for the entire case. The practice
consists of simply asking retained counsel whether counsel is
"fully retained." If counsel responds affirmatively, the inquiry
ends there. However, if counsel states that he or she is not
fully retained, the Court will not permit counsel to appear until
such a representation can be made.
By asking counsel whether he or she is "fully retained," the
Court is asking counsel whether he or she agrees to represent the
defendant for the duration of the criminal proceedings in the
district court. This practice was developed to prohibit an
attorney from trying to limit his representation of a defendant
to only a discrete stage of the criminal proceedings, as has
occurred in the past. For example, an attorney would seek to
appear as "partially retained," meaning that he was retained to
represent the defendant only for the detention hearing, or
only for a suppression hearing, or only to negotiate a plea
agreement. Counsel would then accept an undisclosed partial retainer fee
that was sufficient to cover only that particular service for
which he or she was retained. When the retainer fee ran out,
counsel sought to withdraw or be appointed under the CJA claiming
that the defendant did not have sufficient funds to retain
counsel for the duration of the criminal proceedings.
Permitting an attorney to appear on an ad hoc basis in a
criminal case is disruptive to the criminal proceedings, causes
unnecessary delay (including potential speedy trial problems),
and is prejudicial to the administration of justice. See e.g.
United States v. Zaccaria, 1997 WL 642985 (W.D.N.Y. Apr. 11,
1997) (explaining that it would "wreak havoc" on the defendant's
case if retained counsel was permitted to withdraw and CJA
counsel was appointed two weeks before trial). The criminal
justice system simply cannot function if attorneys are permitted
to appear and withdraw as they see fit. It is also a violation of
counsel's ethical obligations to do so. Pursuant to
22 N.Y.C.R.R. § 1022.11 (Special Rules of the New York State Appellate
Division, Fourth Department), which are made applicable to this
Court under the District's Local Rules,*fn20 "counsel
assigned or retained to represent a defendant in a criminal case
[must] represent that client until the matter has been terminated
in the trial court."*fn21 See also Code of Prof. Resp., DR 1-102(A)(5)
("A lawyer shall not . . . [e]ngage in conduct that is
prejudicial to the administration of justice."); Id. at DR
2-110 (A)(1) ("[A] lawyer shall not withdraw from employment in a
proceeding before that tribunal without its permission."); Id.
at EC 2-32 ("A decision by a lawyer to withdraw should be made
only on the basis of the most compelling circumstances" and
should not occur "without considering carefully and endeavoring
to minimize the possible adverse effect on the rights of the
client and the possibility of prejudice to the client as a result
Allowing counsel to appear ad hoc also renders the carefully
crafted CJA procedures subject to abuse by the defendant or
counsel. As one court explained:
[t]here 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
Thompson, 361 F. Supp. at 888.
It would also permit the retained counsel to deplete whatever
financial resources a defendant does have at an hourly rate far
in excess of that charged under the CJA. Then, when the defendant
has no money left, counsel would expect to be appointed under the
CJA, thereby guaranteeing counsel a fee in excess of what he would have received if he had been appointed
under the CJA at the outset.
This District's practice of inquiring into whether an attorney
has been "fully retained" serves to put defense counsel on notice
at the outset that he will not be permitted to appear only for a
limited purpose, and that if he undertakes representation of a
criminal defendant, he will be expected to do so until the matter
is terminated in the district court. The practice is intended to
ensure continuity in representation to the defendant. If the
retainer fee runs out, counsel will not be permitted to withdraw
simply because his client is unable or refuses to pay. See e.g.
O'Neil, 118 F.3d at 72 (holding that the denial of a motion to
withdraw by retained counsel for nonpayment of fees did not
constitute a conflict of interest between the defendant and
counsel); see also United States v. Rodriguez-Baquero,
660 F. Supp. 259 (D. Me. 1987) (denying defense counsel's motion to
withdraw based upon the defendant's failure to honor a retainer
agreement). The "fully retained" inquiry is not only consistent
with the spirit of the CJA, it was devised to curtail abuses of
The "fully retained" inquiry is not (as defense counsel
characterizes it) a complete prohibition on mid-case CJA
appointments. Indeed, such a midcase appointment occurred in this
case. However, the inquiry serves to alert counsel that, before
granting any such appointment, the Court will require (as it did
in this case) a full and complete disclosure of all 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 attorney
pursuant to the retainer agreement; and the changed
conditions which are alleged to constitute grounds
for the appointment. Only then will the . . . court
be in a position to make an informed disposition of
the application including the determination, in an
appropriate case, to [require contribution by the
defendant in accordance with] 18 U.S.C. § 3006A(f).
See Thompson, 361 F. Supp. at 888. Where, as in this case,
the Court finds that counsel has already been paid a reasonable
fee that is sufficient to compensate him for his services,
counsel will not be appointed under § 3006A(c).
The "fully retained" inquiry is not a "secret rule" of this
Court, as Mr. Mahoney has suggested. It is simply a means of
alerting counsel that he or she will be held to comply with
existing rules and ethical obligations that prohibit an
attorney from appearing on an ad hoc basis in a criminal case.
The onus is upon defense counsel to make adequate fee
arrangements at the outset, recognizing counsel's obligation to
represent a defendant for the entire proceeding. If a defendant
has only limited resources which counsel does not believe will be
sufficient to compensate him for the entire proceeding, counsel
can: (1) decline representation; (2) seek CJA appointment at the
outset;*fn22 or (3) accept representation with the understanding that (a) counsel will not
be permitted to withdraw simply because the defendant is no
longer able or willing to pay, and (b) counsel will not be
appointed under § 3006A(c) of the CJA unless the Court finds that
the interests of justice merit such appointment.
III. CJA Application should be Unsealed
As a final matter, the Court finds it appropriate to unseal the
documents relating to Parker's CJA application. The initial
concern over prejudice to Parker during trial no longer exists at
this juncture. The Court advised counsel that it planned to
unseal the proceedings and no objection was raised.
In United States v. Harris, 707 F.2d 653 (2d Cir.), cert.
denied, 464 U.S. 997 (1983), the Second Circuit held that a CJA
application need not be conducted ex parte and under seal. In
so holding, the court observed that "our legal system is rooted
in the idea that facts are best determined in adversary
proceedings; secret, ex parte hearings are manifestly
conceptually incompatible with our system of criminal
jurisprudence." Id. at 662 (internal quotations omitted). The Court is also mindful of the public's interest in CJA
proceedings as the expenditure of public funds are at issue.
See United States v. Ellis, 90 F.3d 447 (11th Cir. 1996),
cert. denied, 519 U.S. 1118 (1997) (holding that the public had
a right to disclosure of CJA application after trial had ended).
During trial, the public's interest in disclosure was outweighed
by the potential prejudice to Parker. However, the danger of
prejudice no longer exists and the public's interest now
outweighs any potential prejudice. Nor is there any danger of
disclosing privileged information because attorney fee
arrangements are generally not subject to the attorney-client
privilege. See In re Grand Jury Proceedings No. 92-4,
42 F.3d 876, 879, n. 1 (4th Cir. 1994); In re Grand Jury
Proceedings, 841 F.2d 230, 234, n. 3 (8th Cir. 1988).
Accordingly, the Court hereby orders that documents numbered 349
through 353 and 417 through 420 be unsealed.
For the reasons stated herein, the application for appointment
of counsel under the CJA is denied. Parker was not financially
eligible for CJA counsel during the period in question. Even if
he had been financially eligible, the interests of justice would
not be served by granting the application under 18 U.S.C §
3006A(c), as counsel has already been paid more than a reasonable
fee for his services. The Court also orders that documents numbered 349 through 353,
and 417 through 420 be unsealed.
If this Order is appealed, the Court hereby appoints attorney
Carol E. Heckman, Esq., as pro bono counsel to represent the
interests of this Court. The Court also recommends that the
government and the Federal Public Defender be permitted to
participate in the appeal.*fn23
IT IS SO ORDERED.