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U.S. Court of Appeals for the Third Circuit - Guidelines for Claims Submitted for Reimbursement Under the Criminal Justice Act

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

GUIDELINES FOR CLAIMS SUBMITTED FOR REIMBURSEMENT UNDER THE CRIMINAL JUSTICE ACT IN ALL DISTRICT COURT AND COURT OF APPEALS REPRESENTATIONS

1. Payment for Legal Services

1.1 Pre-Approval for Non-Appointed Co-Counsel in Non-Capital Cases

Appointed counsel may not claim compensation for services furnished by an associate, partner, or co-counsel, unless specifically authorized or separately appointed in accordance with Guide to Judiciary Policy, Vol. 7A, § 230.53.20(b), except if co-counsel is a partner or associate of appointed counsel, no prior authorization is required to receive compensation for up to ten hours of work by the partner or associate. If appointed counsel anticipates requesting compensation for more than ten hours of work by a partner or associate, appointed counsel should promptly request authorization. If co-counsel is not a partner or associate of appointed counsel, prior authorization is required to receive compensation for any work by co-counsel.

1.2 Presumptive Hourly Rate for Non-Appointed Co-Counsel in NonCapital Cases

The hourly rate for non-appointed co-counsel who are not members of the CJA Panel shall not exceed 80% of the hourly rate for CJA Panel Attorneys, except when the presiding judge determines that there are special circumstances justifying a higher hourly rate, such as when co-counsel possesses specialized knowledge or skills relevant to the case.

1.3 Compensation of CJA Panel Attorneys

Attorneys who are members of the CJA Panel shall be paid the full CJA hourly rate in all representations, regardless of whether they are appointed as counsel or serve as non-appointed co-counsel.

2 2. Payment for Expert and Other Services

2.1 Hourly Rate for Service Provider Travel Time

Service providers shall be compensated for travel time and expenses. Unless otherwise approved by the presiding judge, investigators, experts, and other service providers should bill travel time at 50 percent of the approved normal billing rate, subject to the exceptions (1) and (2) below:

(1) The first six hours traveling by automobile to, and the first six hours traveling by automobile from, a case-related destination (i.e., a destination relevant to the responsibilities or duties assigned to the expert or service provider by the attorney for the defendant).

(2) Reasonable travel time at or around the case-related destination in order for the expert or service provider to complete the responsibilities or duties assigned to the expert or service provider by the attorney for the defendant.

Time spent performing case-related work while traveling, by any mode of transportation, is not “travel time” and should be compensated at the full (i.e., not reduced) hourly rate. Case-related work is work relevant to the responsibilities or duties assigned to the expert or service provider by the attorney for the defendant.

The presiding judge, upon application by counsel, may authorize payment at the full hourly rate for travel in appropriate circumstances. Examples of such instances may include when a medical doctor is retained and must leave his or her practice to fly to a prison to examine a defendant, or when service providers have to travel because of the requirements of the government (for example, prosecutors might not release evidence, such as photographs or computer hard drives, to be sent to service providers, instead requiring the service provider to travel to the prosecutor’s office or to a laboratory).

2.2 Engagement Letter for Service Providers

In all capital representations and all non-capital representations that appear likely to become or have become extraordinary in terms of potential cost (i.e., attorney hours are expected to exceed 300 or total expenditures are expected to exceed $30,000), attorneys shall use written retainer agreements for investigators, experts, and other service providers setting forth the details of their engagement, including the hourly rate, the maximum number of authorized hours or compensation amount, and the requirement of contemporaneous time record-keeping.

Retained counsel shall also use written engagement letters when they seek to use CJA funds to engage service providers.  

The written engagement letter shall also specify that service providers shall bill travel time at 50% of their hourly rate, except for the first six hours traveling by automobile to, and the first six hours traveling by automobile from, a case-related destination, or reasonable travel time at or around the case-related destination in order for the expert or service provider to complete the responsibilities or duties assigned to the expert or service provider by the attorney for the defendant.

To assist counsel, sample engagement letter language is included as part of this document.  For additional information or samples, please contact the Third Circuit Case Budgeting Attorney at (267) 299-7000.

January 14, 2016