Tuesday, February 28th, 2006

W.D.N.Y.’s “Fully Retained” Inquiry Practice Not Inconsistent with CJA’s Explicit Allowance for Mid-Case Appointment of Assigned Counsel

U.S. District Court for the Western District of New York v. Darnyl Parker, Docket No. 04-5175-cr (2d Cir. Feb. 21, 2006) (Walker, Wesley, Hall): In a lengthy opinion touching on rarely encountered issues, the Court concludes that (1) the district court did not err in denying the defendant’s mid-case request that his retained counsel be appointed under the Criminal Justice Act, 18 U.S.C. § 3006A(c), based on a finding that the defendant was not financially unable to pay for counsel; and that (2) the W.D.N.Y.’s practice of inquiring of retained counsel at an early stage of the proceedings whether s/he is “fully retained” (rather than retained only for limited purposes) does not violate § 3006A(c)’s explicit allowance for mid-case appointment of assigned counsel. See18 U.S.C. § 3006A(c) (“If at any stage of the proceedings, . . . the court finds that the person is financially unable to pay counsel whom he had retained, it may appoint counsel . . . and authorize payment [from CJA funds], as the interests of justice may dictate.”).

Regarding the first issue, the Court ruled — “in an issue of first impression in this Circuit” — that in reviewing a district court’s determination of financial eligibility for mid-case appointment under § 3006A(c), “a three-fold determination” is required. Op. 16. The Court must examine (1) whether the “district court conducted an ‘appropriate inquiry’ into the defendant’s financial eligibility; (2) if it did, whether the court was “correct in its ultimate conclusion of financial eligibility”; and (3) if the court determined that the defendant was financially eligible for mid-case appointment, whether it erred in its weighing of the “interests of justice.” Op. 16-17. And while “doubts as to eligibility should be resolved in a defendant’s favor,” the defendant bears the burden of showing that he is unable to afford representation. Op. 17.

The Circuit upheld the district court’s denial of Parker’s request, made on the eve of trial, that his retained counsel be appointed as CJA counsel under § 3006A(c) due to changes in his financial circumstances. It went through the aforementioned test, and concluded that the district court satisfactorily inquired into Parker’s financial eligibility and that its determination that he was not eligible for assigned counsel was not clearly erroneous. The analysis is necessarily fact specific, and we will say no more.

The second issue concerned the W.D.N.Y.’s “fully retained” inquiry practice, in which a magistrate judge or a district judge demands an explicit acknowledgment from retained counsel at an early stage of representation that s/he has been retained by the defendant for the duration of the proceedings, and not merely for a particular stage of the case (e.g., for bail or for litigating a suppression motion) . Parker argued that the W.D.N.Y.’s practice essentially foreclosed the possibility of mid-case appointments, as provided for by § 3006A(c), and “shift[ed] all of the risk of the defendant’s inability to pay to the defense attorney.” Op. 29.

In response, the W.D.N.Y. (represented by pro bono counsel) acknowledged that the purpose of its practice was to discourage partial representation — and mid-case appointments — but that the practice was not inconsistent with § 3006A(c) because mid-case appointments are still made when the statutory standards are satisfied.

The Circuit bought the W.D.N.Y.’s argument, agreeing that the “fully retained” inquiry was not inconsistent with § 3006A(c)’s explicit allowance for mid-case appointments. The Circuit noted, among other things, that the W.D.N.Y. has in fact made mid-case appointments in several cases and that Parker “adduced no evidence of a W.D.N.Y. pattern or practice of automatically denying mid-case appointment[s].” Op. 38. The Court also went on at length about how this practice is consistent with an attorney’s ethical obligations, assisted in the prevention of abuses of CJA resources, and discouraged the use of partial representation. Op. 35-42.

The Court upheld the practice, however, only by taking much bite out of it. As the Court explained, “the fact that defense counsel has stated that he or she is ‘fully retained’ at an initial appearance cannot automatically preclude the possibility of mid-case appointment.” Op. 30. And while some W.D.N.Y. cases had suggested that once retained counsel acknowledged his or her “fully retained” status, mid-case appointments would be allowed only when “sufficiently unusual and extenuating” circumstances are found, Op. 34 n.20, the Circuit rejected this narrowing language as incompatible with § 3006A(c). Id. Rather, “in deciding whether to authorize CJA appointments under § 3006A(c), a magistate judge or district court need [only] find . . . [that defendant is financially unable to pay for counsel and that] the ‘interests of justice'” so demand. Id. It is hard to see what is left of the W.D.N.Y.’s “fully retained” inquiry given the Circuit’s conclusion that this practice “is compatible with the authorization of CJA appointment under § 3006A(c), as long as mid-case appointment is permitted if the defendant is financially eligible and the ‘interests of justice’ dictate.” Op. 42 (emphasis added).

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