Last substantive revision (Transmittal 07-012) May 21, 2019

Last revised (minor technical changes) March 8, 2024

Guide to Judiciary Policy

Vol. 7: Defender Services

Pt. A: Guidelines for Administering the CJA and Related Statutes

Ch. 2: Appointment and Payment of Counsel

Appx. 2A: Model Plan for Implementation and Administration of the 

Criminal Justice Act

For use by a district with a federal public or community defender organization.1

Note: Brackets denote optional language based on the configuration of defense services in the 

district.

Defender Services Committee Comment: This “Model Plan” is intended to provide 

guidance in the implementation and administration of the Criminal Justice Act, as required 

under 18 U.S.C. § 3006A(b). This reflects the policies of the Judicial Conference of the 

United States provided in Guide to Judiciary Policy, Vol. 7A, and the Outline of the Defender 

Services Program Strategic Plan.

I. Authority ............................................................................................................... 4

II. Statement of Policy............................................................................................... 4

A. Objectives .................................................................................................. 4

B. Compliance................................................................................................ 4

III. Definitions............................................................................................................. 5

A. Representation .......................................................................................... 5

B. Appointed Attorney .................................................................................... 5

C. CJA Administrator...................................................................................... 5

IV. Determination of Eligibility for CJA Representation .............................................. 5

A. Subject Matter Eligibility............................................................................. 5

1. Mandatory ....................................................................................... 5

2. Discretionary ................................................................................... 6

3. Ancillary Matters.............................................................................. 6

B. Financial Eligibility ..................................................................................... 7

1 As of January 2016, there are federal defender organizations in 91 of the 94 judicial districts. 

Unless otherwise specified, in districts without a federal defender organization, “local CJA 

resource counsel” should be substituted for “[federal public defender/community defender].”
Guide to Judiciary Policy, Vol. 7A, Appx. 2A Page 2

1. Presentation of Accused for Financial Eligibility Determination....... 7

2. Factual Determination of Financial Eligibility................................... 9

V. Timely Appointment of Counsel.......................................................................... 10

A. Timing of Appointment............................................................................. 10

B. Court’s Responsibility .............................................................................. 10

C. Pretrial Service Interview ......................................................................... 10

D. Retroactive Appointment of Counsel ....................................................... 11

VI. Provision of Representational Services .............................................................. 11

A. [Federal Public Defender/Community Defender] and Private Counsel .... 11

B. Administration .......................................................................................... 11

C. Apportionment of Cases .......................................................................... 11

D. Number of Counsel.................................................................................. 11

E. Capital Cases .......................................................................................... 11

VII. [Federal Public Defender/Community Defender] Organization........................... 12

A. Establishment .......................................................................................... 12

B. Standards ................................................................................................ 12

C. Workload.................................................................................................. 12

D. Professional Conduct............................................................................... 12

E. Private Practice of Law ............................................................................ 12

F. Supervision of Defender Organization ..................................................... 12

G. Training.................................................................................................... 13

VIII. CJA Panel of Private Attorneys .......................................................................... 13

A. Establishment of the CJA Panel Committee and/or CJA Supervisory 

Attorney ................................................................................................... 13

B. Duties of the CJA Committee and/or CJA Supervisory Attorney.............. 14

IX. Establishment of a CJA Panel ............................................................................ 16

A. Approval of CJA Panel............................................................................. 16

B. Size of CJA Panel.................................................................................... 16

C. Qualifications and Membership on the CJA Panel................................... 16

2. Equal Opportunity ......................................................................... 17

3. Eligibility ........................................................................................ 17

4. Appointment to CJA Panel ............................................................ 17

5. Terms of CJA Panel Members ...................................................... 18
Guide to Judiciary Policy, Vol. 7A, Appx. 2A Page 3 

6. Reappointment of CJA Panel Members ........................................ 18

7. Removal from the CJA Panel........................................................ 18

X. CJA Panel Attorney Appointment in Non-Capital Cases .................................... 20

A. Appointment List ...................................................................................... 20

B. Appointment Procedures ......................................................................... 20

XI. Duties of CJA Panel Members............................................................................ 21

A. Standards and Professional Conduct ...................................................... 21

B. Training and Continuing Legal Education ................................................ 21

C. Facilities and Technology Requirements ................................................. 22

D. Continuing Representation ...................................................................... 22

E. Miscellaneous .......................................................................................... 22

XII. Compensation of CJA Panel Attorneys .............................................................. 23

A. Policy of the Court Regarding Compensation.......................................... 23

B. Payment Procedures ............................................................................... 23

XIII. Investigative, Expert, and Other Services........................................................... 24

A. Financial Eligibility ................................................................................... 24

B. Applications ............................................................................................. 25

C. Compliance.............................................................................................. 25

XIV. Appointment of Counsel and Case Management in CJA Capital Cases ............ 25

A. Applicable Legal Authority ....................................................................... 25

B. General Applicability and Appointment of Counsel Requirements........... 25

C. Appointment of Trial Counsel in Federal Death-Eligible Cases ............... 27

1. General Requirements .................................................................. 27

2. Qualifications of Learned Counsel ................................................ 28

3. Qualifications of Second and Additional Counsel.......................... 29

D. Appointment and Qualifications of Direct Appeal Counsel in Federal Death 

Penalty Cases.......................................................................................... 29

E. Appointment and Qualifications of Post-Conviction Counsel in Federal 

Death Penalty Cases (28 U.S.C. § 2255) ................................................ 30

F. Appointment and Qualifications of Counsel in Federal Capital Habeas 

Corpus Proceedings (28 U.S.C. § 2254).................................................. 31

XV. Effective Date ..................................................................................................... 33
Guide to Judiciary Policy, Vol. 7A, Appx. 2A Page 4 

United States District Court

For the _____ District of ______

Criminal Justice Act Plan

I. Authority

Under the Criminal Justice Act (CJA) of 1964, as amended, 18 U.S.C. § 3006A, and Guide to 

Judiciary Policy (Guide), Volume 7A, the judges of the United States District Court for the 

District of adopt this Plan, as approved by the circuit, for furnishing representation in 

federal court for any person financially unable to obtain adequate representation consistent with 

the CJA.

II. Statement of Policy

A. Objectives 

The objectives of this Plan are:

1. to attain the goal of equal justice under the law for all persons; 

2. to provide all eligible persons with timely appointed counsel services that 

are consistent with the best practices of the legal profession, are costeffective, and protect the independence of the defense function so that 

the rights of individual defendants are safeguarded and enforced; and

3. to particularize the requirements of the CJA, the USA Patriot 

Improvement and Reauthorization Act of 2005 (recodified at 18 U.S.C.

§ 3599), and Guide, Vol. 7A, in a way that meets the needs of this district. 

This Plan must therefore be administered so that those accused of a crime, or 

otherwise eligible for services under the CJA, will not be deprived of the right to 

counsel, or any element of representation necessary to an effective defense, due 

to lack of financial resources.

B. Compliance

1. The court, its clerk, the [federal public/community] defender organization, 

attorneys provided by a bar association or legal aid agency, and private 

attorneys appointed under the CJA must comply with Guide, Vol. 7A, 

approved by the Judicial Conference of the United States or its 

Committee on Defender Services, and with this Plan. 

2. The court will ensure that a current copy of the CJA Plan is made 

available on the court’s website and provided to CJA counsel upon the 

attorney’s designation as a member of the CJA panel of private attorneys 

(CJA Panel).
Guide to Judiciary Policy, Vol. 7A, Appx. 2A Page 5 

III. Definitions

A. Representation 

“Representation” includes counsel and investigative, expert, and other services.

B. Appointed Attorney 

“Appointed attorney” is an attorney designated to represent a financially eligible 

person under the CJA and this Plan. Such attorneys include private attorneys, 

the [federal public/community] defender and staff attorneys of the [federal 

public/community] defender organization, and attorneys provided by a bar 

association or legal aid agency. 

C. CJA Administrator

“CJA Administrator” is a person designated by the [federal public 

defender/community defender/court] to administer the CJA Panel.

IV. Determination of Eligibility for CJA Representation

A. Subject Matter Eligibility

1. Mandatory 

Representation must be provided for any financially eligible person who:

a. is charged with a felony or with a Class A misdemeanor;

b. is a juvenile alleged to have committed an act of juvenile 

delinquency as defined in 18 U.S.C. § 5031; 

c. is charged with a violation of probation, or faces a change of a 

term or condition of probation (unless the modification sought is 

favorable to the probationer and the government has not objected 

to the proposed change);

d. is under arrest, when such representation is required by law;

e. is entitled to appointment of counsel in parole proceedings;

f. is charged with a violation of supervised release or faces 

modification, reduction, or enlargement of a condition, or 

extension or revocation of a term of supervised release;

g. is subject to a mental condition hearing under 18 U.S.C. chapter 

313; 

h. is in custody as a material witness;
Guide to Judiciary Policy, Vol. 7A, Appx. 2A Page 6 

i. is seeking to set aside or vacate a death sentence under 

28 U.S.C. § 2254 or § 2255;

j. is entitled to appointment of counsel in verification of consent 

proceedings in connection with a transfer of an offender to or from 

the United States for the execution of a penal sentence under 

18 U.S.C. § 4109; 

k. is entitled to appointment of counsel under the Sixth Amendment 

to the Constitution; or

l. faces loss of liberty in a case and federal law requires the 

appointment of counsel.

2. Discretionary 

Whenever a district judge or magistrate judge determines that the 

interests of justice so require, representation may be provided for any 

financially eligible person who:

a. is charged with a petty offense (Class B or C misdemeanor, or an 

infraction) for which a sentence to confinement is authorized;

b. is seeking relief under 28 U.S.C. §§ 2241, 2254, or 2255 other 

than to set aside or vacate a death sentence;

c. is charged with civil or criminal contempt and faces loss of liberty;

d. has been called as a witness before a grand jury, a court, the 

Congress, or a federal agency or commission which has the 

power to compel testimony, and there is reason to believe, either 

prior to or during testimony, that the witness could be subject to a 

criminal prosecution, a civil or criminal contempt proceeding, or 

face loss of liberty;

e. has been advised by the United States attorney or a law 

enforcement officer that they are the target of a grand jury 

investigation;

f. is proposed by the United States attorney for processing under a 

pretrial diversion program; or

g. is held for international extradition under 18 U.S.C. chapter 209. 

3. Ancillary Matters 

Representation may also be provided for financially eligible persons in 

ancillary matters appropriate to the criminal proceedings under 18 U.S.C.

§ 3006A(c). In determining whether representation in an ancillary matter 
Guide to Judiciary Policy, Vol. 7A, Appx. 2A Page 7 

is appropriate to the criminal proceedings, the court should consider 

whether such representation is reasonably necessary:

a. to protect a constitutional right;

b. to contribute in some significant way to the defense of the 

principal criminal charge;

c. to aid in preparation for the trial or disposition of the principal 

criminal charge;

d. to enforce the terms of a plea agreement in the principal criminal 

charge;

e. to preserve the claim of the CJA client to an interest in real or 

personal property subject to civil forfeiture proceeding under 

18 U.S.C. § 983,19 U.S.C. § 1602, 21 U.S.C. § 881, or similar 

statutes, which property, if recovered by the client, may be 

considered for reimbursement under 18. U.S.C. § 3006A(f); or

f. effectuate the return of real or personal property belonging to the

CJA client, which may be subject to a motion for return of property 

under Fed. R. Crim. P. 41(g), which property, if recovered by the 

client, may be considered for reimbursement under 18 U.S.C.

§ 3006A(f). 

B. Financial Eligibility 

1. Presentation of Accused for Financial Eligibility Determination

a. Duties of Law Enforcement

(i) Upon arrest, and where the defendant has not retained or 

waived counsel, federal law enforcement officials must 

promptly notify, telephonically or electronically, the 

appropriate court personnel, who in turn will notify the 

[federal public defender/ community defender] of the arrest 

of an individual in connection with a federal criminal 

charge.

(ii) Employees of law enforcement agencies should not 

participate in the completion of the financial affidavit or 

seek to obtain information concerning financial eligibility 

from a person requesting the appointment of counsel.

b. Duties of United States Attorney’s Office

(i) Upon the return or unsealing of an indictment or the filing 

of a criminal information, and where the defendant has not 

retained or waived counsel, the United States attorney or 
Guide to Judiciary Policy, Vol. 7A, Appx. 2A Page 8 

their delegate will promptly notify, telephonically or 

electronically, appropriate court personnel, who in turn will 

notify the [federal public defender/community defender]. 

(ii) Upon issuance of a target letter, and where the individual 

has not retained or waived counsel, the United States 

attorney or their delegate must promptly notify, 

telephonically or electronically, the appropriate court 

personnel, who in turn will notify the [federal public

defender/community defender], unless the United States 

Attorney’s Office is aware of an actual or potential conflict 

with the target and the [federal public defender/community 

defender], in which case they must promptly notify the 

court. 

(iii) Employees of the United States Attorney’s Office should 

not participate in the completion of the financial affidavit or 

seek to obtain information concerning financial eligibility 

from a person requesting the appointment of counsel.

c. Duties of [Federal Public Defender/Community Defender] Office

(i) In cases in which the [federal public defender/community 

defender] may be appointed, the office will: 

• immediately investigate and determine whether an 

actual or potential conflict exists; and

• in the event of an actual or potential conflict, promptly 

notify the [court/CJA administrator] to facilitate the 

timely appointment of other counsel. 

(ii) When practicable, the [federal public defender/community 

defender] will discuss with the person who indicates that 

he or she is not financially able to secure representation 

the right to appointed counsel and, if appointment of 

counsel seems likely, assist in the completion of a financial 

affidavit (Form CJA 23) and arrange to have the person 

promptly presented before a magistrate judge or district 

judge of this court for determination of financial eligibility 

and appointment of counsel. 

d. Duties of Pretrial Services Office 

(i) When practicable, the pretrial services officer will not 

conduct the pretrial service interview of a financially eligible 

defendant until counsel has been appointed, unless the 

right to counsel is waived or the defendant otherwise 

consents to a pretrial service interview without counsel. 
Guide to Judiciary Policy, Vol. 7A, Appx. 2A Page 9 

(ii) When counsel has been appointed, the pretrial services 

officer will provide counsel notice and a reasonable 

opportunity to attend any interview of the defendant by the 

pretrial services officer prior to the initial pretrial release or 

detention hearing. 

2. Factual Determination of Financial Eligibility

a. In every case where appointment of counsel is authorized under 

18 U.S.C. § 3006A(a) and related statutes, the court must advise 

the person that he or she has a right to be represented by counsel 

throughout the case and that, if so desired, counsel will be 

appointed to represent the person if he or she is financially unable 

to obtain counsel. 

b. The determination of eligibility for representation under the CJA is 

a judicial function to be performed by the court after making 

appropriate inquiries concerning the person’s financial eligibility. 

Other employees of the court may be designated to obtain or 

verify the facts relevant to the financial eligibility determination.

c. In determining whether a person is “financially unable to obtain 

counsel,” consideration should be given to the cost of providing 

the person and his or her dependents with the necessities of life, 

the cost of securing pretrial release, asset encumbrance, and the 

likely cost of retained counsel. 

d. The initial determination of eligibility must be made without regard 

to the financial ability of the person’s family to retain counsel 

unless their family indicates willingness and ability to do so 

promptly.

e. Any doubts about a person’s eligibility should be resolved in the 

person’s favor; erroneous determinations of eligibility may be 

corrected at a later time.

f. Relevant information bearing on the person’s financial eligibility 

should be reflected on a financial eligibility affidavit (Form CJA 

23). 

Defender Services Committee Comment: The Judicial Conference recognizes the 

importance of the advice of counsel for persons subject to proceedings under the Bail Reform 

Act, 18 U.S.C. § 3142 et seq., prior to their being interviewed by a pretrial services or 

probation officer. Therefore, the Conference encourages districts to take the steps necessary 

to permit the furnishing of appointed counsel at this stage of the proceedings to financially 

eligible defendants, having due regard for the importance of affording the pretrial services 

officer adequate time to interview the defendant and verify information prior to the bail 

hearing. JCUS-MAR 88, p. 18–19.
Guide to Judiciary Policy, Vol. 7A, Appx. 2A Page 10

g. If at any time after the appointment of counsel a judge finds that a 

person provided representation is financially able to obtain 

counsel or make partial payment for the representation, the judge 

may terminate the appointment of counsel or direct that any funds 

available to the defendant be paid as provided in 18 U.S.C.

§ 3006A(f). 

h. If at any stage of the proceedings a judge finds that a person is no 

longer financially able to pay retained counsel, counsel may be 

appointed consistent with the general provisions of this Plan. 

V. Timely Appointment of Counsel

A. Timing of Appointment 

Counsel must be provided to eligible persons as soon as feasible in the following 

circumstances, whichever occurs earliest: 

1. after they are taken into custody;

2. when they appear before a magistrate or district court judge;

3. when they are formally charged or notified of charges if formal charges 

are sealed; or

4. when a magistrate or district court judge otherwise considers appointment 

of counsel appropriate under the CJA and related statutes. 

B. Court’s Responsibility 

The court, in cooperation with the [federal public defender/community defender]

and the United States attorney, will make such arrangements with federal, state, 

and local investigative and police agencies as will ensure timely appointment of 

counsel. 

C. Pretrial Service Interview 

When practicable, unless the right to counsel is waived or the defendant 

otherwise consents to a pretrial service interview without counsel, financially 

eligible defendants will be provided appointed counsel prior to being interviewed 

by a pretrial services officer.
Guide to Judiciary Policy, Vol. 7A, Appx. 2A Page 11

Defender Services Committee Comment: Some courts make use of an “on call” or “duty 

day” attorney for this purpose. A CJA panel attorney or attorneys may be appointed to be on

call to advise persons who are in custody, or who otherwise may be entitled to counsel under 

the CJA, during the pretrial service interview process.

D. Retroactive Appointment of Counsel 

Appointment of counsel may be made retroactive to include representation 

provided prior to appointment.

VI. Provision of Representational Services 

A. [Federal Public Defender/Community Defender] and Private Counsel 

This Plan provides for representational services by the [federal public 

defender/community defender] organization and for the appointment and 

compensation of private counsel from a CJA Panel list maintained by the [federal 

public defender/community defender/court] in cases authorized under the CJA 

and related statutes.

B. Administration 

Administration of the CJA Panel, as provided in this Plan, is delegated and 

assigned to the [federal public defender/community defender/court]. 

C. Apportionment of Cases 

Where practical and cost effective, private attorneys from the CJA Panel will be 

appointed in a substantial proportion of the cases in which the accused is 

determined to be financially eligible for representation under the CJA. 

“Substantial” will usually be defined as a minimum of twenty-five percent (25%) of 

the annual CJA appointments.

D. Number of Counsel 

More than one attorney may be appointed in any case determined by the court to 

be extremely difficult.

E. Capital Cases 

Procedures for appointment of counsel in cases where the defendant is charged 

with a crime that may be punishable by death, or is seeking to vacate or set 

aside a death sentence in proceedings under 28 U.S.C. §§ 2254 or 2255, are in 

section XIV of this Plan. 
Guide to Judiciary Policy, Vol. 7A, Appx. 2A Page 12

VII. [Federal Public Defender/Community Defender] Organization

A. Establishment

The [federal public/community/defender organization] [insert name of 

organization] is established in this district under the CJA and is responsible for 

rendering defense services on appointment throughout this district.

B. Standards 

The [federal public defender/community defender] organization must provide high 

quality representation consistent with the best practices of the legal profession 

and commensurate with those services rendered when counsel is privately 

retained. See: Polk County v. Dodson, 454 U.S. 312, 318 (1981) (“‘Once a 

lawyer has undertaken the representation of an accused, the duties and 

obligations are the same whether the lawyer is privately retained, appointed, or 

serving in a legal aid or defender program.’” (quoting ABA Standards for Criminal 

Justice section 4-3.9 (2d ed. 1980))).

C. Workload

The [federal public defender/community defender] organization will continually 

monitor the workloads of its staff to ensure high quality representation for all 

clients.

D. Professional Conduct

The [federal public defender/community defender] organization must conform to 

the highest standards of professional conduct, including but not limited to the 

[American Bar Association’s Model Rules of Professional Conduct/American Bar 

Association’s Model Code of Professional Conduct/Code of Conduct for Federal 

Public Defender Employees/Model Code of Conduct for Federal Community 

Defender Employees/other standards for professional conduct adopted by the 

court].

E. Private Practice of Law

Neither the [federal public defender/community defender] nor any defender 

employee may engage in the private practice of law except as authorized by the 

[federal public defender/community defender] Code of Conduct.

F. Supervision of Defender Organization 

The [federal public defender/community defender] will be responsible for the 

supervision and management of the [federal public defender/community 

defender] organization. Therefore, the [federal public defender/community 

defender] will be appointed in all cases assigned to that organization for 
Guide to Judiciary Policy, Vol. 7A, Appx. 2A Page 13

subsequent assignment to staff attorneys at the discretion of the [federal public

defender/community defender]. 

G. Training 

The [federal public defender/community defender] will assess the training needs 

of [federal public defender/community defender] staff and. in coordination with 

the CJA Panel Attorney District Representative,2 the training needs of the local 

panel attorneys, and provide training opportunities and other educational 

resources. 

VIII. CJA Panel of Private Attorneys

A. Establishment of the CJA Panel Committee and/or CJA Supervisory Attorney

1. A CJA Panel Committee (“CJA Committee”) will be established by the 

[court/federal public defender/community defender] in consultation with 

the [court/federal public defender/community defender]. The CJA 

Committee will consist of one district court judge, one magistrate judge, 

the [federal public defender/community defender], the CJA Panel Attorney 

District Representative (PADR), a criminal defense attorney who 

practices regularly in the district who may be a CJA panel member, and 

an ex officio staff member employed by the [federal public

defender/community defender/clerk] who will act as administrative 

coordinator.

Defender Services Committee Comment: The composition of the CJA Panel Committee 

can be adjusted to reflect the degree of judicial, federal defender, or panel attorney 

involvement that is desired by each district court. The committee must incorporate judicial 

input into panel administration. See: JCUS-SEP 2018, p. 39. The court should make a 

diligent effort to ensure that the composition of the CJA Panel Committee reflects the racial, 

ethnic, gender, and geographic diversity of the district.

[AND/OR 1. Every district should designate a CJA supervisory or administrative 

attorney or a defender office to manage the selection, appointment, 

retention, and removal of panel attorneys from the district’s CJA panel. 

See: JCUS-SEP 2018, p. 39.] The [federal public

defender/community defender] or their representative, and the district’s 

PADR are permanent members of the CJA Committee.

2 The CJA Panel Attorney District Representative (PADR) is a member of the district’s CJA 

Panel who is selected by the local [federal public defender/community defender], with 

acquiescence from the chief judge, to serve as the representative of the district’s CJA Panel for 

the national Defender Services CJA PADR program and local CJA committees. 
Guide to Judiciary Policy, Vol. 7A, Appx. 2A Page 14

Membership on the CJA Committee will otherwise be for a term of three 

years and may be extended for an additional three years. Members’ 

terms will be staggered to ensure continuity on the CJA Committee. 

3. The CJA Committee will meet at least twice a year and at any time the 

court asks the Committee to consider an issue. 

B. Duties of the CJA Committee and/or CJA Supervisory Attorney

1. Membership

Examine the qualifications of applicants for membership on the CJA 

Panel and recommend to the chief judge the approval of those attorneys 

who are deemed qualified and the rejection of the applications of those 

attorneys deemed unqualified. 

2. Recruitment

Engage in recruitment efforts to establish a diverse panel and ensure that 

all qualified attorneys are encouraged to participate in the furnishing of 

representation in CJA cases. 

3. Annual Report

Review the operation and administration of the CJA Panel over the 

preceding year, and recommend any necessary or appropriate changes 

to the chief judge concerning:

a. the size of the CJA Panel;

b. the recruitment of qualified and diverse attorneys as required in 

this plan; and 

c. recurring issues or difficulties encountered by panel members or 

their CJA clients.
Guide to Judiciary Policy, Vol. 7A, Appx. 2A Page 15

Defender Services Committee Comment: Recruitment efforts to establish a diverse CJA 

Panel could include the following:

• notifying bar associations comprised of racially and ethnically diverse 

populations of the availability of panel membership;

• advertising in legal journals directed towards women, people with disabilities, 

and people of color to encourage panel membership;

• informal person-to-person recruiting of women, people of color, and the 

disabled community by CJA panel committee members and panel 

administrators; and

• contacting current or former members of the panel, or other prominent local 

attorneys who have disabilities or are minorities or women for 

recommendations of potential panel members.

4. Removal

Recommend to the chief judge the removal of any CJA panel member 

who: 

a. fails to satisfactorily fulfill the requirements of CJA panel 

membership during their term of service, including the failure to 

provide high quality representation to CJA clients, or

b. has engaged in other conduct such that his or her continued 

service on the CJA Panel is inappropriate.

See also: Section IX.C.7. 

5. Training

Assist the [federal public defender/community defender] office in 

providing training for the CJA Panel on substantive and procedural legal 

matters affecting representation of CJA clients. 

6. Voucher Review

Review and make recommendations on the processing and payment of 

CJA vouchers in those cases where the court, for reasons other than 

mathematical errors, is considering authorizing payment for less than the 

amount of compensation claimed by CJA counsel. The judge will, at the 

time the voucher is submitted to the CJA Committee, provide a statement 

describing questions or concerns they have with the voucher. Counsel will 

be notified of the potential voucher reduction and given the opportunity to 

provide information or documentation relevant to the voucher and 

concerns raised by the judge. The CJA Committee will issue a written 

recommendation to the judge.

See also: Section XII.B.6. 
Guide to Judiciary Policy, Vol. 7A, Appx. 2A Page 16

7. Mentoring

Appoint experienced CJA panel members to serve on a subcommittee to 

create and administer a mentoring program designed to identify and help 

prepare viable candidates to qualify for consideration for appointment to 

the CJA Panel. Experienced members of the criminal defense bar who 

have practiced extensively in the federal courts will be selected to serve 

as mentors. The subcommittee will review the mentee applications, make 

recommendations concerning their participation in the mentoring 

program, identify appropriate cases for the mentoring program, evaluate 

the success of the mentoring program, and provide guidance to the 

mentors.

Defender Services Committee Comment: Mentoring programs may include compensation 

for mentees (1) under the CJA at the prevailing hourly rate when appointed as second 

counsel in cases determined by the court to be extremely difficult; (2) under the CJA at a 

reduced associate rate with prior authorization by the court; or (3) using the court’s Bar and 

Bench funds at a rate determined by the court for non-representational services, such as 

consulting with appointed counsel or attending training sessions. Questions about mentoring 

programs should be directed to the AO’s Defender Services Office, Legal and Policy Division 

Duty Attorney as 202-502-3030.

IX. Establishment of a CJA Panel

A. Approval of CJA Panel

1. The existing, previously established panel of attorneys who are eligible 

and willing to be appointed to provide representation under the CJA is 

recognized.

2. The chair of the CJA Committee and/or CJA Supervisory Attorney will 

approve attorneys for membership on the CJA Panel after receiving 

recommendations from the CJA Committee.

B. Size of CJA Panel

1. The size of the CJA Panel will be determined by the CJA Committee 

and/or CJA Supervisory Attorney based on the caseload and activity of 

the panel members, subject to review by the court. 

2. The CJA Panel must be large enough to provide a sufficient number of 

experienced attorneys to handle the CJA caseload, yet small enough so 

that CJA panel members will receive an adequate number of 

appointments to maintain their proficiency in federal criminal defense 

work enabling them to provide high quality representation consistent with 

the best practices of the legal profession and commensurate with those 

services rendered when counsel is privately retained.

C. Qualifications and Membership on the CJA Panel
Guide to Judiciary Policy, Vol. 7A, Appx. 2A Page 17

1. Application

Application forms for membership on the CJA Panel are available from 

the [federal public defender/community defender/court]. 

2. Equal Opportunity

All qualified attorneys are encouraged to participate in the furnishing of 

representation in CJA cases.

3. Eligibility

a. Applicants for the CJA Panel must be members in good standing 

of the federal bar of this district and the _______ Circuit Court of 

Appeals.

b. Applicants must maintain a primary, satellite, or shared office in 

this district. 

c. Applicants must possess strong litigation skills and demonstrate 

proficiency with the federal sentencing guidelines, federal 

sentencing procedures, the Bail Reform Act, the Federal Rules of 

Criminal Procedure, and the Federal Rules of Evidence.

d. Applicants must have significant experience representing persons 

charged with serious criminal offenses and demonstrate a 

commitment to the defense of people who lack the financial 

means to hire an attorney. 

e. Attorneys who do not possess the experience above but believe 

they have equivalent other experience are encouraged to apply 

and provide in writing the details of that experience for the CJA 

Committee and/or CJA Supervisory Attorney’s consideration.

Defender Services Committee Comment: These general eligibility requirements may be 

supplemented or replaced by more detailed and specific standards, depending on the needs 

of the district. Specific eligibility requirements might include at least two (2) years in a public 

defender or prosecutor’s office, either state or federal; OR at least three (3) years in private 

practice during which time the attorney was involved in at least 20 criminal cases in either 

state or federal court, five (5) of which were state or federal felony trials; OR an applicant 

should have tried at least two (2) federal felony cases from initial appearance or arraignment 

through sentencing and have other significant litigation experience as determined by the CJA 

Committee and/or CJA Supervisory Attorney. A specific training eligibility requirement may 

be imposed prior to appointment to the panel. See: Guide, Vol. 7A, § 210.10.15(c)(2).

4. Appointment to CJA Panel

After considering the recommendations of the CJA Committee and/or 

CJA Supervisory Attorney, the chief judge will appoint or reappoint 
Guide to Judiciary Policy, Vol. 7A, Appx. 2A Page 18

attorneys to the CJA Panel. Due to the highly complex and demanding 

nature of capital and habeas corpus cases, special procedures will be 

followed for the eligibility and appointment of counsel in such cases. See: 

Section XIV of this Plan. 

5. Terms of CJA Panel Members

To establish staggered CJA membership terms, the current CJA Panel 

will be divided into three groups, equal in number. Initially, members will 

be assigned to one of the three groups on a random basis. Members of 

the first group will continue to serve on the CJA Panel for a term of one 

year, members of the second group will continue to serve on the CJA 

Panel for a term of two years, and members of the third group will 

continue to serve on the CJA Panel for a term of three years. Thereafter, 

attorneys admitted to membership on the CJA Panel will each serve for a 

term of three years, subject to the reappointment procedures in this plan. 

6. Reappointment of CJA Panel Members

a. The [federal public defender/community defender/court] will notify 

CJA panel members, prior to the expiration of their current term, of 

the need to apply for reappointment to the CJA Panel.

b. A member of the CJA Panel who wishes to be considered for 

reappointment must apply for appointment to an additional term at 

least three months prior to the expiration of his or her current term.

c. The CJA Committee and/or CJA Supervisory Attorney will solicit 

input concerning the quality of representation provided by lawyers 

seeking reappointment.

d. The CJA Committee and/or CJA Supervisory Attorney also will 

consider how many cases the CJA panel member has accepted 

and declined during the review period, whether the member has 

participated in training opportunities, whether the member has 

been the subject of any complaints, and whether the member 

continues to meet the prerequisites and obligations of CJA panel 

members as provided in this Plan.

7. Removal from the CJA Panel 

a. Mandatory removal

Any member of the CJA Panel who is suspended or disbarred 

from the practice of law by the state court before whom such 

member is admitted, or who is suspended or disbarred from this 

court or any federal court, will be removed from the CJA Panel 

immediately.

b. Automatic disciplinary review
Guide to Judiciary Policy, Vol. 7A, Appx. 2A Page 19

The CJA Committee and/or CJA Supervisory Attorney will conduct 

an automatic disciplinary review of any CJA panel member 

against whom any licensing authority, grievance committee, or 

administrative body has taken action, or when a finding of 

probable cause, contempt, sanction, or reprimand has been 

issued against the panel member by any state or federal court.

c. Complaints

(i) Initiation 

A complaint against a panel member may be initiated by 

the CJA Committee and/or CJA Supervisory Attorney, a 

judge, another panel member, a defendant, or a member 

of the [federal public defender/community defender] office. 

A complaint need not follow any particular form, but it must 

be in writing and state the alleged deficiency with 

specificity. Any complaint should be directed to the CJA 

Committee and/or CJA Supervisory Attorney, which will 

determine whether further investigation is necessary.

(ii) Notice

When conducting an investigation, the CJA Committee 

and/or CJA Supervisory Attorney will notify the panel 

member of the specific allegations. 

(iii) Response

A panel member subject to investigation may respond in 

writing and appear, if so directed, before the CJA 

Committee and/or CJA Supervisory Attorney or its 

subcommittee. 

(iv) Protective action

Prior to disposition of any complaint, the CJA Committee 

and/or CJA Supervisory Attorney may recommend 

temporary suspension or removal of the panel member 

from any pending case, or from the panel, and may take 

any other protective action that is in the best interest of the 

client or the administration of this Plan.

(v) Review and recommendation

After investigation, the CJA Committee and/or CJA 

Supervisory Attorney may recommend dismissing the 

complaint, or recommend appropriate remedial action, 

including removing the attorney from the panel, limiting the 

attorney’s participation to particular types or categories of 
Guide to Judiciary Policy, Vol. 7A, Appx. 2A Page 20

cases, directing the attorney to complete specific CLE 

requirements before receiving further panel appointments, 

limiting the attorney’s participation to handling cases that 

are directly supervised or overseen by another panel 

member or other experienced practitioner, or any other 

appropriate remedial action.

(vi) Final disposition by the court

The CJA Committee and/or CJA Supervisory Attorney will 

forward its recommendation to the chief judge for 

consideration and final disposition.

(vii) Confidentiality

Unless otherwise directed by the court, any information 

acquired concerning any possible disciplinary action, 

including any complaint and any related proceeding, will be 

confidential.

(viii) None of these procedures create a property interest in 

being on or remaining on the CJA Panel.

d. Notification

The [federal public defender/community defender] will be 

immediately notified when any member of the CJA Panel is 

removed or suspended.

X. CJA Panel Attorney Appointment in Non-Capital Cases 

A. Appointment List 

The [federal public defender/community defender/court] will maintain a current 

list of all attorneys included on the CJA Panel, with current office addresses, 

email addresses, and telephone numbers, as well as a statement of qualifications 

and experience.

B. Appointment Procedures

1. The [federal public defender/community defender/court] is responsible for 

overseeing the appointment of cases to panel attorneys. The [federal 

public defender/community defender/court] will maintain a record of panel 

attorney appointments and, when appropriate, data reflecting the 

apportionment of appointments between attorneys from the [federal public

defender/community defender] office and panel attorneys.

2. Appointment of cases to CJA panel members will ordinarily be made on a 

rotational basis. In a complex or otherwise difficult case, the [federal 
Guide to Judiciary Policy, Vol. 7A, Appx. 2A Page 21

public defender/community defender/court] may appoint counsel outside 

of the normal rotation to ensure the defendant has sufficiently 

experienced counsel. 

3. Under special circumstances the court may appoint a member of the bar 

of the court who is not a member of the CJA Panel. Such special 

circumstances may include cases in which the court determines that the

appointment of a particular attorney is in the interests of justice, judicial 

economy, or continuity of representation, or for any other compelling 

reason. It is not anticipated that special circumstances will arise often, 

and the procedures provided in the Plan are presumed to be sufficient in 

the vast majority of cases in which counsel are to be appointed. 

Appointments made under this section will be reported to the CJA 

Committee. 

4. Unless otherwise impracticable, CJA panel attorney(s) must be available 

to represent defendant(s) at the same stage of the proceedings as is the 

[federal public defender/community defender]. 

XI. Duties of CJA Panel Members

A. Standards and Professional Conduct

1. CJA panel members must provide high quality representation consistent 

with the best practices of the legal profession and commensurate with 

those services rendered when counsel is privately retained. See: 

Polk County v. Dodson, 454 U.S. 312, 318 (1981) (“‘Once a lawyer has 

undertaken the representation of an accused, the duties and obligations 

are the same whether the lawyer is privately retained, appointed, or 

serving in a legal aid or defender program.’” (quoting ABA Standards for 

Criminal Justice section 4-3.9 (2d ed. 1980))).

2. Attorneys appointed under the CJA must conform to the highest 

standards of professional conduct, including but not limited to the 

[American Bar Association’s Model Rules of Professional Conduct/ 

American Bar Association’s Model Code of Professional Conduct/ other 

standards for professional conduct adopted by the court].

3. CJA panel members must notify within 30 days the chair of the CJA 

Committee and/or CJA Supervisory Attorney when any licensing 

authority, grievance committee, or administrative body has taken action 

against them, or when a finding of contempt, sanction, or reprimand has 

been issued against the panel member by any state of federal court.

B. Training and Continuing Legal Education

1. Attorneys on the CJA Panel are expected to remain current with 

developments in federal criminal defense law, practice, and procedure, 
Guide to Judiciary Policy, Vol. 7A, Appx. 2A Page 22

including the Recommendation for Electronically Stored Information (ESI) 

Discovery Production in Federal Criminal Cases.

2. Attorneys on the CJA Panel are expected to attend trainings sponsored 

by the [federal public defender/community defender]. 

3. Attorneys on the CJA Panel will be guided in their practice by the Federal 

Adaptation of the National Legal Aid and Defender Association 

Performance Guidelines for Criminal Defense Representations.

4. CJA panel members must attend ____ continuing legal education hours

relevant to federal criminal practice annually.

5 Failure to comply with these training and legal education requirements 

may be grounds for removal from the CJA Panel.

C. Facilities and Technology Requirements

1. CJA panel attorneys must have facilities, resources, and technological 

capability to effectively and efficiently manage assigned cases.

2. CJA panel attorneys must comply with the requirements of electronic 

filing and eVoucher.

3. CJA panel attorneys must know and abide by procedures related to 

requests for investigative, expert, and other services.

D. Continuing Representation

Once counsel is appointed under the CJA, counsel will continue the 

representation until the matter, including appeals (unless provided otherwise by 

the ____Circuit’s CJA plan) or review by certiorari, is closed; or until substitute 

counsel has filed a notice of appearance; or until an order is entered allowing or 

requiring the person represented to proceed pro se; or until the appointment is 

terminated by court order.

Defender Services Committee Comment: While the Defender Services Committee 

recognizes there may be benefits to maintaining continuity of counsel, it also recognizes that 

trial counsel may not have the requisite skills to proceed as appellate counsel. There should 

be significant deference to the position of trial counsel regarding whether, in each matter, 

continuity is in the best interests of the client and consistent with counsel’s professional skills 

and obligations. (Good Practices for Panel Attorney Programs in the U.S. Court of Appeals, 

Vera Institute of Justice, January 2006.)

E. Miscellaneous

1. Case budgeting
Guide to Judiciary Policy, Vol. 7A, Appx. 2A Page 23

In non-capital representations of unusual complexity that are likely to 

become extraordinary in terms of cost, the court may require 

development of a case budget consistent with Guide, Vol. 7A, 

§§ 230.26.10–20. 

2. No receipt of other payment

Appointed counsel may not require, request, or accept any payment or 

promise of payment or any other valuable consideration for 

representation under the CJA, unless such payment is approved by order 

of the court.

3. Redetermination of need

If at any time after appointment, counsel has reason to believe that a 

party is financially able to obtain counsel, or make partial payment for 

counsel, and the source of counsel’s information is not protected as a 

privileged communication, counsel will advise the court.

XII. Compensation of CJA Panel Attorneys

A. Policy of the Court Regarding Compensation 

1. Providing fair compensation to appointed counsel is a critical component 

of the administration of justice. CJA panel attorneys must be 

compensated for time expended in court and time reasonably expended 

out of court, and reimbursed for expenses reasonably incurred.

2. Voucher cuts should be limited to:

a. Mathematical errors;

b. Instances in which work billed was not compensable;

c. Instances in which work was not undertaken or completed; and

d. Instances in which the hours billed are clearly in excess of what

was reasonably required to complete the task. 

See: JCUS-SEP 2018, p. 42. 

B. Payment Procedures

1. Claims for compensation must be submitted on the appropriate CJA form 

through the court’s eVoucher system. 

2. Claims for compensation should be submitted no later than 45 days after 

final disposition of the case, unless good cause is shown.
Guide to Judiciary Policy, Vol. 7A, Appx. 2A Page 24

3. The [federal public defender/community defender/court] or their designee 

will review the claim for mathematical and technical accuracy and for 

conformity with Guide, Vol. 7A and, if correct, will forward the claim for 

consideration and action by the presiding judge.

4. Absent extraordinary circumstances, the court should act on CJA 

compensation claims within 30 days of submission, and vouchers should 

not be delayed or reduced for the purpose of diminishing Defender 

Services program costs in response to adverse financial circumstances.

5. Except in cases involving mathematical corrections, no claim for 

compensation submitted for services provided under the CJA will be 

reduced without affording counsel notice and the opportunity to be heard.

6. The court, when contemplating reduction of a CJA voucher for other than 

mathematical reasons, may refer the voucher to the CJA Committee 

and/or CJA Supervisory Attorney for review and recommendation before 

final action on the claim is taken. See: Section VIII of this Plan. 

7. Notwithstanding the procedure described above, the court may, in the first 

instance, contact appointed counsel to inquire regarding questions or 

concerns with a claim for compensation. In the event that the matter is

resolved to the satisfaction of the court and CJA panel member, the claim 

for compensation need not be referred to the CJA Committee and/or CJA 

Supervisory Attorney for review and recommendation.

C. Independent Review Process

1. The [district/division] must create an independent review process for 

panel attorneys who wish to challenge any reductions to vouchers that 

have been made by the presiding judge. 

2. Any challenged reduction should be subject to review consistent with this 

independent review process. 

3. All processes implemented by a district or division must be consistent 

with the statutory requirements for fixing compensation and 

reimbursement to be paid under 18 U.S.C. § 3006A(d).

XIII. Investigative, Expert, and Other Services 

A. Financial Eligibility

Counsel for a person who is financially unable to obtain investigative, expert, or 

other services necessary for an adequate defense may request such services in 

an ex parte application to the court as provided in 18 U.S.C. § 3006A(e)(1), 

regardless of whether counsel is appointed under the CJA. Upon finding that the 

services are necessary, and that the person is financially unable to obtain them, 

the court must authorize counsel to obtain the services. 
Guide to Judiciary Policy, Vol. 7A, Appx. 2A Page 25

Defender Services Committee Comment: A court may choose to have applications for 

investigative, expert, and other services considered by a non-presiding judge to help ensure 

appointed counsel’s ability to obtain the necessary resources in a manner that does not 

unreasonably compromise or interfere with the exercise of sound independent professional 

judgment.

B. Applications 

Requests for authorization of funds for investigative, expert, and other services 

must be submitted in an ex parte application to the court (using the court’s 

eVoucher system) and must not be disclosed except with the consent of the 

person represented or as required by law or Judicial Conference policy.

C. Compliance

Counsel must comply with Judicial Conference policies in Guide, Vol. 7A, Ch. 3. 

XIV. Appointment of Counsel and Case Management in CJA Capital Cases

A. Applicable Legal Authority

The appointment and compensation of counsel in capital cases and the 

authorization and payment of persons providing investigative, expert, and other 

services are governed by 18 U.S.C. §§ 3005, 3006A, and 3599, and Guide, Vol. 

7A, Ch. 6 [and insert local rule if any].

B. General Applicability and Appointment of Counsel Requirements 

1. Unless otherwise specified, the provisions of this section apply to all 

capital proceedings in the federal courts, whether those matters 

originated in a district court (federal capital trials) or in a state court 

(habeas proceedings under 28 U.S.C. § 2254). Such matters include 

those in which the death penalty may be or is being sought by the 

prosecution, motions for a new trial, direct appeal, applications for a writ 

of certiorari to the Supreme Court of the United States, all post-conviction 

proceedings under 28 U.S.C. §§ 2254 or 2255 seeking to vacate or set 

aside a death sentence, applications for stays of execution, competency 

proceedings, proceedings for executive or other clemency, and other 

appropriate motions and proceedings.

2. Any person charged with a crime that may be punishable by death who is 

or becomes financially unable to obtain representation is entitled to the 

assistance of appointed counsel throughout every stage of available 

judicial proceedings, including pretrial proceedings, trial, sentencing, 

motions for new trial, appeals, applications for writ of certiorari to the 

Supreme Court of the United States, and all available post-conviction 

processes, together with applications for stays of execution and other 

appropriate motions and procedures, competency proceedings, and 
Guide to Judiciary Policy, Vol. 7A, Appx. 2A Page 26

proceedings for executive or other clemency as may be available to the 

defendant. See: 18 U.S.C. § 3599(e). 

3. Qualified counsel must be appointed in capital cases at the earliest 

possible opportunity.

4. Given the complex and demanding nature of capital cases, where 

appropriate, the court will utilize the expert services available through the 

Administrative Office of the U.S. Courts (AO), Defender Services Death 

Penalty Resource Counsel projects (“Resource Counsel projects”), which 

include: (1) Federal Death Penalty Resource Counsel and Capital 

Resource Counsel Projects (for federal capital trials), (2) Federal Capital 

Appellate Resource Counsel Project, (3) Federal Capital Habeas § 2255 

Project, and (4) National and Regional Habeas Assistance and Training 

Counsel Projects (§ 2254). These counsel are death penalty experts who 

may be relied upon by the court for assistance with selection and 

appointment of counsel, case budgeting, and legal, practical, and other 

matters arising in federal capital cases.

5. The [federal public defender/community defender] should promptly notify 

and consult with the appropriate Resource Counsel projects about 

potential and actual federal capital trial, appellate, and habeas corpus 

cases, and consider their recommendations for appointment of counsel. 

6. In appointing counsel in capital cases, judges should consider and give 

due weight to the recommendations made by federal defenders and 

resource counsel and articulate reasons for not doing so.

7. The presiding judge may appoint an attorney furnished by a state or local 

public defender organization or legal aid agency or other private, nonprofit organization to represent a person charged with a capital crime or 

seeking federal death penalty habeas corpus relief provided that the 

attorney is fully qualified. Such appointments may be in place of, or in 

addition to, the appointment of a federal defender organization or a CJA 

panel attorney or an attorney appointed pro hac vice. See: 18 U.S.C.

§ 3006A(a)(3). 

8. All attorneys appointed in federal capital cases must be well qualified, by 

virtue of their training, commitment, and distinguished prior capital 

defense experience at the relevant stage of the proceeding, to serve as 

counsel in this highly specialized and demanding litigation. 

9. All attorneys appointed in federal capital cases must have sufficient time 

and resources to devote to the representation, taking into account their 

current caseloads and the extraordinary demands of federal capital 

cases. 

10. All attorneys appointed in federal capital cases should comply with the 

American Bar Association’s 2003 Guidelines for the Appointment and 
Guide to Judiciary Policy, Vol. 7A, Appx. 2A Page 27

Performance of Defense Counsel in Death Penalty Cases (Guidelines 1.1 

and 10.2 et seq.), and the 2008 Supplementary Guidelines for the 

Mitigation Function of Defense Teams in Death Penalty Cases. 

11. All attorneys appointed in federal capital cases should consult regularly 

with the appropriate Resource Counsel projects.

12. There should be no formal or informal non-statutory budgetary caps on 

capital cases, whether in a capital trial, direct appeal, or habeas matter.

13. All capital cases should be budgeted with the assistance of casebudgeting attorneys and/or resource counsel where appropriate. 

14. Questions about the appointment and compensation of counsel and the 

authorization and payment of investigative, expert, and other service 

providers in federal capital cases should be directed to the AO’s Defender 

Services Office, Legal and Policy Division Duty Attorney at 202-502-3030 

or by email at dso_lpd@ao.uscourts.gov. 

C. Appointment of Trial Counsel in Federal Death-Eligible Cases3

1. General Requirements

a. Appointment of qualified capital trial counsel must occur no later 

than when a defendant is charged with a federal criminal offense 

where the penalty of death is possible. See: 18 U.S.C. § 3005. 

b. To protect the rights of an individual who, although uncharged, is 

the subject of an investigation in a federal death-eligible case, the 

court may appoint capitally qualified counsel upon request, 

consistent with Sections C.1, 2, and 3 of these provisions.

c. At the outset of every capital case, the court must appoint two 

attorneys, at least one of whom meets the qualifications for 

“learned counsel” as described below. If necessary for adequate 

representation, more than two attorneys may be appointed to 

represent a defendant in a capital case. See: 18 U.S.C. § 3005. 

d. When appointing counsel, the judge must consider the

recommendation of the [federal public defender/community 

defender], who will consult with Federal Death Penalty Resource 

3 The Judicial Conference adopted detailed recommendations on the appointment and 

compensation of counsel in federal death penalty cases in 1998 (JCUS-SEP 98, p. 22). In 

September 2010, the Defender Services Committee endorsed revised commentary to the 

Judicial Conference’s 1998 recommendations. CJA Guidelines, Vol. 7A, Appx. 6A 

(Recommendations and Commentary Concerning the Cost and Quality of Defense 

Representation (Updated Spencer Report, September 2010)) (“Appx. 6A”) is available on the 

judiciary’s website. 
Guide to Judiciary Policy, Vol. 7A, Appx. 2A Page 28

Counsel to recommend qualified counsel. [In those districts 

without a federal defender organization, the judge must, as 

required by 18 U.S.C. § 3005, consider the recommendation of 

the AO’s Defender Services Office.] See: 18 U.S.C. § 3005. 

e. In appointing counsel, judges should give due weight to the 

recommendations made by federal defenders and resource 

counsel and articulate reasons for not doing so.

f. To effectuate the intent of 18 U.S.C. § 3005 that the [federal public 

defender/community defender]’s recommendation be provided to 

the court, the judge should ensure the [federal public/ community)

defender has been notified of the need to appoint capitally 

qualified counsel.

g. Reliance on a list for appointment of capital counsel is not 

recommended because selection of trial counsel should account 

for the particular needs of the case and the defendant, and be 

based on individualized recommendations from the [federal public 

defender/community defender] in conjunction with the Federal 

Death Penalty Resource Counsel and Capital Resource Counsel 

projects.

h. Out-of-district counsel, including federal defender organization 

staff, who possess the requisite expertise may be considered for 

appointment in capital trials to achieve high quality representation 

together with cost and other efficiencies.

i. In evaluating the qualifications of proposed trial counsel, 

consideration should be given to their commitment to the defense 

of capital cases, their current caseload including other capital 

cases, and their willingness to effectively represent the interests of 

the client. 

2. Qualifications of Learned Counsel 

a. Learned counsel must either be a member of this district’s bar or 

be eligible for admission pro hac vice based on his or her 

qualifications. Appointment of counsel from outside the 

jurisdiction is common in federal capital cases to achieve cost and 

other efficiencies together with high quality representation. 

b. Learned counsel must meet the minimum experience standards in

18 U.S.C. §§ 3005 and 3599. 

c. Learned counsel should have distinguished prior experience in the 

trial, appeal, or post-conviction review of federal death penalty 

cases, or distinguished prior experience in state death penalty 

trials, appeals, or post-conviction review that, in combination with 

co-counsel, will assure high quality representation.
Guide to Judiciary Policy, Vol. 7A, Appx. 2A Page 29

d. “Distinguished prior experience” contemplates excellence, not 

simply prior experience. Counsel with distinguished prior 

experience should be appointed even if meeting this standard 

requires appointing counsel from outside the district where the 

matter arises. 

e. The suitability of learned counsel should be assessed with respect 

to the particular demands of the case, the stage of the litigation, 

and the defendant. 

f. Learned counsel must be willing and able to adjust other caseload 

demands to accommodate the extraordinary time required by the 

capital representation. 

g. Learned counsel should satisfy the qualification standards 

endorsed by bar associations and other legal organizations 

regarding the quality of representation in capital cases.

3. Qualifications of Second and Additional Counsel 

a. Second and additional counsel may, but are not required to, 

satisfy the qualifications for learned counsel, as provided above. 

b. Second and additional counsel must be well qualified, by virtue of 

their distinguished prior criminal defense experience, training and 

commitment, to serve as counsel in this highly specialized and 

demanding litigation. 

c. Second and additional counsel must be willing and able to adjust 

other caseload demands to accommodate the extraordinary time 

required by the capital representation. 

d. The suitability of second and additional counsel should be 

assessed with respect to the demands of the individual case, the 

stage of the litigation, and the defendant. 

D. Appointment and Qualifications of Direct Appeal Counsel in Federal Death 

Penalty Cases 

1. When appointing appellate counsel, the judge must consider the 

recommendation of the [federal public defender/community defender], 

who will consult with Federal Capital Appellate Resource Counsel to 

recommend qualified counsel. 

2. In appointing appellate counsel, judges should give due weight to the 

recommendations made by federal defenders and resource counsel and 

articulate reasons for not doing so.
Guide to Judiciary Policy, Vol. 7A, Appx. 2A Page 30

3. Counsel appointed to represent a death-sentenced federal appellant 

should include at least one attorney who did not represent the appellant 

at trial. 

4. Each trial counsel who withdraws should be replaced with similarly 

qualified counsel to represent the defendant on appeal. 

5. Out-of-district counsel, including federal defender organization staff, who 

possess the requisite expertise may be considered for appointment in 

capital appeals to achieve high quality representation together with cost 

and other efficiencies.

6. Appellate counsel, between them, should have distinguished prior 

experience in federal criminal appeals and capital appeals. 

7. At least one of the attorneys appointed as appellate counsel must have 

the requisite background, knowledge, and experience required by 

18 U.S.C.§ 3599(c) or (d). 

8. In evaluating the qualifications of proposed appellate counsel, 

consideration should be given to the qualification standards endorsed by 

bar associations and other legal organizations regarding the quality of 

legal representation in capital cases.

9. In evaluating the qualifications of proposed appellate counsel, 

consideration should be given to their commitment to the defense of 

capital cases, their current caseload including other capital cases, and 

their willingness to effectively represent the interests of the client. 

E. Appointment and Qualifications of Post-Conviction Counsel in Federal Death 

Penalty Cases (28 U.S.C. § 2255) 

1. A financially eligible person seeking to vacate or set aside a death 

sentence in proceedings under 28 U.S.C. § 2255 is entitled to 

appointment of fully qualified counsel. See: 18 U.S.C. § 3599(a)(2). 

2. Due to the complex, demanding, and protracted nature of death penalty 

proceedings, the court should consider appointing at least two attorneys.

3. In light of the accelerated timeline applicable to capital § 2255 

proceedings, prompt appointment of counsel is essential. Wherever 

possible, appointment should take place prior to the denial of certiorari on 

direct appeal by the United States Supreme Court. 

4. When appointing counsel in a capital § 2255 matter, the court should 

consider the recommendation of the [federal public/ community] defender, 

who will consult with the Federal Capital Habeas § 2255 Project. 
Guide to Judiciary Policy, Vol. 7A, Appx. 2A Page 31

5. In appointing post-conviction counsel, judges should give due weight to 

the recommendations made by federal defenders and resource counsel 

and articulate reasons for not doing so.

6. Out-of-district counsel, including federal defender organization staff, who

possess the requisite expertise may be considered for appointment in 

capital § 2255 cases to achieve high quality representation together with 

cost and other efficiencies. 

7. Local or circuit restrictions prohibiting capital habeas units (CHUs) from 

engaging in cross-district or cross-circuit representation should not be 

imposed without good cause. Every district should have access to a 

CHU.

6. Counsel in § 2255 cases should have distinguished prior experience in 

the area of federal post-conviction proceedings and in capital postconviction proceedings.

7. When possible, post-conviction counsel should have distinguished prior 

experience in capital § 2255 representations. 

8. In evaluating the qualifications of proposed post-conviction counsel, 

consideration should be given to the qualification standards endorsed by 

bar associations and other legal organizations regarding the quality of 

legal representation in capital cases. 

9. In evaluating the qualifications of proposed post-conviction § 2255 

counsel, consideration should be given to their commitment to the 

defense of capital cases, their current caseload including other capital 

cases, and their willingness to effectively represent the interests of the 

client.

F. Appointment and Qualifications of Counsel in Federal Capital Habeas Corpus 

Proceedings (28 U.S.C. § 2254) 

1. A financially eligible person seeking to vacate or set aside a death 

sentence in proceedings under 28 U.S.C. § 2254 is entitled to the 

appointment of qualified counsel. See: 18 U.S.C. § 3599(a)(2). 

2. Due to the complex, demanding, and protracted nature of death penalty 

proceedings, the court should consider appointing at least two attorneys.

3. When appointing counsel in a capital § 2254 matter, the appointing 

authority should consider the recommendation of the [federal public 

defender/community defender] who will consult with the National or 

Regional Habeas Assistance and Training Counsel projects.

[To be used in districts where the FDO has a Capital Habeas Unit (CHU) 

that specializes in the representation of death-sentenced individuals in 

post-conviction proceedings, ADD: The defender’s recommendation may 
Guide to Judiciary Policy, Vol. 7A, Appx. 2A Page 32

be to appoint this district’s CHU, a CHU from another district, or other 

counsel who qualify for appointment under 18 U.S.C. § 3599 and this 

Plan, or any combination of the foregoing appropriate under the 

circumstances.]

4. In appointing counsel in a capital § 2254 matter, judges should give due 

weight to the recommendations made by federal defenders and resource 

counsel and articulate reasons for not doing so.

5. Local or circuit restrictions prohibiting Capital Habeas Units (CHUs) from 

engaging in cross-district or cross-circuit representation should not be 

imposed without good cause. Every district should have access to a 

CHU.

6. Out-of-district counsel, including federal defender organization staff, who

possess the requisite expertise may be considered for appointment in 

capital § 2254 cases to achieve cost and other efficiencies together with 

high quality representation. 

7. For federal counsel to avail themselves of the full statute of limitations 

period to prepare a petition, the court should appoint counsel and provide 

appropriate litigation resources at the earliest possible time permissible 

by law. 

8. Unless precluded by a conflict of interest, or replaced by similarly 

qualified counsel upon motion by the attorney or motion by the defendant, 

capital § 2254 counsel must represent the defendant throughout every 

subsequent stage of available judicial proceedings and all available postconviction processes, together with applications for stays of execution 

and other appropriate motions and procedures, and must also represent 

the defendant in such competency proceedings and proceedings for 

executive or other clemency as may be available to the defendant. See: 

18 U.S.C. § 3599(e). 

9. Counsel in capital § 2254 cases should have distinguished prior 

experience in the area of federal post-conviction proceedings and in 

capital post-conviction proceedings.

10. When possible, capital § 2254 counsel should have distinguished prior 

experience in capital § 2254 representations.

11. In evaluating the qualifications of proposed capital § 2254 counsel, 

consideration should be given to the qualification standards endorsed by 

bar associations and other legal organizations regarding the quality of 

legal representation in capital cases. 

12. In evaluating the qualifications of proposed capital § 2254 counsel, 

consideration should be given to proposed counsel’s commitment to the 

defense of capital cases, their current caseload including other capital 
Guide to Judiciary Policy, Vol. 7A, Appx. 2A Page 33

cases, and their willingness to represent effectively the interests of the 

client.

XV. Effective Date

This Plan will become effective when approved by the Judicial Council of the ____ Circuit.

ENTER FOR THE COURT ON (month) (day), (year).

_________________________________

CHIEF JUDGE, DISTRICT COURT 

APPROVED BY THE JUDICIAL COUNCIL OF THE ___CIRCUIT ON (month) (day), (year).

__________________________________

CHIEF JUDGE, COURT OF APPEALS