WILLIAM J. MARTINI, District Judge:
This matter comes before the Court on attorney Michael Baldassare's CJA Form 20 voucher requesting payment in the amount of $99,183.24
On December 12, 2007, a Federal Complaint was first filed against Defendant in an earlier case, United States v. Mosley, Criminal No. 08-771(JAG). On December 19, 2007, attorney Michael Baldassare was appointed to represent Defendant pursuant to the Criminal Justice Act ("CJA"), 18 U.S.C. § 3006A. Defendant was then indicted in this matter on October 15, 2008. On December 12, 2008, Defendant filed a motion to dismiss the Indictment with prejudice pursuant to the Speedy Trial Act, 18 U.S.C. § 3162, and oral argument was heard on February 9, 2009. On October 9, 2009, Judge Greenaway dismissed the Indictment without prejudice.
On November 6, 2009, the Government re-indicted Defendant, leading to the instant case. A grand jury returned a two-count indictment charging Defendant with (1) conspiring to distribute and possess with intent to distribute a controlled substance, and (2) distributing and possessing with intent to distribute a controlled substance. Defendant was arraigned on December 15, 2009. Defendant then moved to be released on bail on January 7, 2010, and his motion was denied by Magistrate Judge Salas after a hearing. On February 24, 2010, Defendant entered into a plea agreement with the Government, and pleaded guilty to a one-count superseding information charging Defendant with conspiracy to possess with intent to distribute a quantity of a substance containing cocaine base (i.e., "crack cocaine"). (Docket No. 19.) On August 5, 2010, the Court sentenced Defendant to 48 months imprisonment and three years of supervised release.
The CJA authorizes the appointment of, and compensation for, counsel to represent indigent defendants charged with federal offenses. 18 U.S.C. § 3006A. Attorneys are paid in accordance with the Act both for hours spent before the court and those "reasonably expended out of court." 18 U.S.C. § 3006A(d)(1). However, it is the duty of the Court to determine what is a reasonable expense or a reasonable use of billable time, and to determine exactly what compensation and reimbursement will be paid. 18 U.S.C. § 3006A(d)(5); United States v. Smith, 76 F.Supp.2d 767, 768 (S.D.Tex.1999). Courts cannot simply rubber-stamp every CJA voucher that crosses their paths. Every time an attorney submits such a voucher, that attorney is asking the U.S. Treasury to dole out a portion of its limited resources. Smith, 76 F.Supp.2d at 768. It is the role of the Court to scrutinize these requests to properly safeguard precious taxpayer funds, or else there is little to prevent taxpayer money from being wasted on unreasonable or unnecessary activities by court appointed defense counsel. Id.
To guide attorneys in submitting CJA forms and to guide Courts in evaluating those forms, the Judicial Conference of the United States has approved official guidelines addressing the CJA program, set forth in the Guide to Judiciary Policy, Volume 7, Part A ("Guidelines"). First, the Guidelines institute case compensation maximums, which set the maximum compensation attorneys should request for particular types of cases. Guidelines, § 230.23.20. Under the Guidelines, the case compensation maximum for a case such as this one (involving a defendant accused of a felony at the trial court level) is $9,700 as of January 1, 2010.
The Court is supposed to be limited by this two-step process to grant excess compensation only in cases that are out of the ordinary, and such excess compensation was meant to be the exception, not the rule. See United States v. Holtz, 379 F.Supp.2d 988, 992 (C.D.Ill.2005) (noting that many attorneys "wrongfully expect the Court to approve their fee petitions regardless of the CJA maximum"). However, the analysis is often not so rigid, and fees over the case compensation maximum are routinely reviewed and approved by this Court and its colleagues without formal inquiry. Such formality is often not necessary, as most attorneys who have accepted CJA appointments have recognized this limit and request excess compensation sparingly and only when necessary. As the Court has observed over the years, most CJA attorneys perform admirably, and submit vouchers that are reasonable and appropriate. Indeed, only once before did this Court raise question over a voucher, and the issue was easily resolved with a small adjustment in the amount of compensation. The Court's choice to conduct a more formal analysis in this case is in response to what this Court believes to be an exorbitant fee.
A case is considered "complex" if the legal or factual issues in the case are unusual, requiring the expenditure of more time, skill, and effort than would normally be required. Guidelines, § 230.23.40(b). A case is considered "extended" if the case reasonably requires more time than usual, including pre-trial and post-trial hearings. Id. Here, Mr. Baldassare argues that this case was both extended and complex. First, he points out that his representation of Defendant, Mr. Mosley, began in December 2007 and continued through September 2010. However, the mere passage of time is not the criteria for determining whether a case is "extended." Here, almost a year of Mr. Baldassare's representation of Defendant consisted of waiting for a ruling on the motion to dismiss the Indictment. Therefore, while three years may have passed, the case itself did not require more of Mr. Baldassare's time than a usual criminal case.
The Court also disagrees with Mr. Baldassare's description of this case as "complex." While Mr. Baldassare points to aspects of the case such as the motion to dismiss pursuant to the Speedy Trial Act, which required briefing as well as a hearing, this is certainly not a unique issue for a criminal defendant. The Court has reviewed the brief and the motion to dismiss opinion, and did not find any unusual or out of the ordinary arguments. Additionally, Mr. Baldassare's claim that preparing the Sentencing Memorandum required more work than usual, as it provided an analysis of the career offender guidelines and the crack cocaine sentencing guidelines, also fails to justify dubbing this case as particularly "complex." See, e.g., United States v. Sepulveda, 502 F.Supp.2d 1104, 1109 (D.Mont.2007) ("Disputes over whether a prior conviction should count toward a defendant's criminal history are routine, and do not support a finding of complexity.") Issues with the guidelines for career offenders and crack cocaine crimes are common pre-sentencing topics that the Court has seen presented in other cases numerous times. In essentially every case dealing with either crack cocaine crimes or defendants with higher criminal history levels, counsel is likely to raise objections in their sentencing memorandums
Nevertheless, the Court finds that this case does qualify for some excess compensation. While finding that excess compensation beyond the $9,700 case compensation maximum is appropriate, this does not end the Court's inquiry. The second prong requires the Court to determine what amount of excess fees will provide "fair compensation." Guidelines, § 230.23.40(c).
Mr. Baldassare is requesting $79,445.80 in attorneys' fees, as well as $19,737.42 in expenses,
Upon this discovery, the Court inquired further to determine how much Mr. Baldassare had requested in past CJA vouchers submitted to the District of New Jersey.
This Court is obviously not in the position to evaluate whether the amounts claimed in these other CJA vouchers constituted "fair compensation." However, fee requests that appear higher than usual often are given the benefit of the doubt when viewed in a vacuum, and it is only when all the bills are analyzed at once that a pattern of high billing is revealed. See, e.g., United States v. Sepulveda, 502 F.Supp.2d 1104, 1110 (D.Mont.2007) ("a pattern can emerge tending to show that an attorney regularly exceeds the limits of necessity"). Incidentally, some of Mr. Baldassare's submissions have indeed aroused concern in the past. For example, one District Court Judge, upon receiving a voucher, wrote back to the In-Court Supervisor who oversees the CJA vouchers, stating, "why are other [attorneys] billing? ?"
This analysis of other fee requests should put into context the Court's concern over approving this CJA voucher for an amount that is grossly out of line with similar requests in this district. As the Ninth Circuit has explained, the purpose of the CJA is not to help attorneys profit, but to provide indigent defendants with adequate representation in the Federal courts, and to provide "reasonable compensation to counsel who are assigned." In re Smith, 586 F.3d 1169, 1175 (9th Cir.2009) (quoting S.Rep. No. 88-346, at 1 (1963)); see also United States v. Stout, 109 F.Supp.2d 982, 984 (C.D.Ill.2000) (counsel entitled to be paid "only for hours that are necessary for reasonably diligent, conscientious, and competent representation"); United States v. Jewett, 625 F.Supp. 498, 500 (W.D.Mo.1985) ("Congress has always made clear that it intended that `fair compensation,' rather than `full compensation,' for appointed counsel was contemplated by the Criminal Justice Act."). Congress's purpose behind instituting CJA compensation was to "ease the financial burden" associated with providing these services which had been traditionally
Finally, it should be noted that without a full evidentiary hearing, the option of which was offered to and declined by Mr. Baldassare during the April 15, 2011 hearing, the Court is limited in its findings to determining a reasonable and necessary amount to provide fair compensation. The Court cannot make a final determination as to what hours were actually expended, nor as to whether there has been any purposeful overstatement of fees.
This first issue the Court has with Mr. Baldassare's voucher is an issue that likely needs to be clarified for all court-appointed attorneys. The CJA system is designed for indigent defendants to be represented by a single attorney. The framework at a large law firm, however, is designed around teams of multiple attorneys working together on each matter. The Guidelines address this issue, stating that while co-counsel or associate attorneys normally "may not be compensated under the CJA" unless separately appointed by the Court, "an appointed counsel may claim compensation for services furnished by a partner or associate . . . within the maximum compensation allowed by the CJA." Guidelines, §§ 230.53.10, 230.53.20 (emphasis added). In his letter to the Court dated December 13, 2010, Mr. Baldassare mistakenly interprets this provision to mean that each associate or partner he chooses to work on this case can separately bill for the full case maximum. (December 13 Letter, at 2.) Logically, this interpretation is untenable, as it would mean that any court-appointed attorney could assign as many associates on a matter as he or she chooses, and then bill the case compensation maximum for each one without end. The correct interpretation of this provision is that it only allows a court-appointed attorney to share the work with other partners or associates in his or her firm so long as the total compensation requested is within the statutory maximum. This meaning is clear when the provision is read in conjunction with an earlier provision in the Guidelines, which states that case compensation maximums may apply "separately to each attorney" only in "difficult cases in which the court finds it necessary to appoint more than one attorney." Guidelines, § 230.23.10(f). Therefore, unless otherwise authorized by the Court, any CJA vouchers requesting a fee over the case compensation maximum should reflect only the hours billed by the court-appointed attorney.
Such strict adherence to the Guidelines is not always required by courts, and the Court is mindful that CJA fees have been paid to multiple attorneys without pre-authorization in the past in this District.
The CJA voucher submitted by Mr. Baldassare includes hours billed by no less than eight fellow Gibbons P.C. attorneys. One associate in particular, Ms. Costello, billed more hours than Mr. Baldassare himself. The Court never authorized the appointment of any additional attorneys in this case, nor would it have. As such, while Mr. Baldassare and other court-appointed attorneys are free to seek the help of associates and other partners in their law firms, the work of these additional attorneys should be done on a pro bono basis unless expressly authorized by the Court.
To aid courts in determining whether the CJA fee requested is "necessary to provide fair compensation," the Guidelines point to the following criteria:
Guidelines, § 230.23.40(c). See also United States v. Johnson, 214 F.Supp.2d 488, 491 (E.D.Pa.2002).
Applying these factors to the case at hand, only the first factor arguably supports a larger fee. Defending a client against a claim with a high mandatory sentencing minimum, such as in a crack cocaine case like this one, is a heavy responsibility — but is one that is undertaken frequently by CJA appointees. However, that does not mean that attorney "has carte blanche to request whatever fees he or she wants[.]" Jackson v. United States, Civ. No. 09-1039, 2010 WL 3927873, at *3, 2010 U.S. Dist. LEXIS 105447, at *9 (E.D.Tex. Oct. 1, 2010).
The other criteria do not provide support for the high fee Mr. Baldassare is requesting. The second factor, manner in which duties were performed, has already been taken into account by the discussion above regarding multiple attorneys. The Court has already determined that duties performed by counsel other than Mr. Baldassare will not be paid for by the CJA program. The third factor, relating to Mr. Baldassare's abilities, further requires that the Court keep the excess compensation to a minimum. Mr. Baldassare is a knowledgeable and experienced criminal defense attorney, having practiced in the field for over a decade. His extensive experience should have "reduce[d] the need for legal research on basic issues." Jackson, 2010
All in all, while a fee over the case compensation maximum may be reasonable in this case, there is no justification for a large departure anywhere near the amount requested. Without a detailed inquiry and full evidentiary hearing, however, the Court can only be guided by the Court's own research into average CJA fees granted in similar cases. As stated previously, the average CJA payment for this type of representation in this District is $8,548. Using this average as a benchmark, and increasing the fee from this average to take into account the plea negotiations with the government addressed above, the Court finds that $13,500 represents what is necessary and reasonable to provide "fair compensation" in this case.
In addition to the $79,445.80 in attorneys' fees, Mr. Baldassare is also requesting reimbursement for $19,737.42 in expenses, another highly questionable submission. As explained above, allowable expenses are addressed separately in sections 230.63 and 230.66 of the Guidelines. Unlike for attorneys' fees, there is no limitation on the amount of expenses that may be reimbursed. Guidelines, § 230.23.40(d). Instead, any "[o]ut-of-pocket expenses reasonably incurred may be claimed on the voucher[.]" Guidelines, § 230.63.10 (emphasis added). The Guidelines do restrict reimbursements to specific categories of expenses. Acceptable categories include: (1) travel expenses, § 230.63.40; (2) transcripts, § 230.63.20; (3) computer-assisted research, but only if "the amount claimed is reasonable,"
As with his requests for attorney compensation, Mr. Baldassare has a history of requesting high amounts for expenses in this District. The amount of expenses claimed here, $19,737.42, is excessive for a case like this one. Over the eight CJA vouchers submitted by Mr. Baldassare to this district over the past five years, the amount of expenses claimed range from $636.40 to $37,074.34. In total, Mr. Baldassare has received $119,130.33 in reimbursed expenses over his last eight CJA appointments. This averages out to over $10,000 in expenses per case, which yet again shows a pattern of requesting excessive amounts.
The Court will reimburse Mr. Baldassare a total of $2,650.67 for what it finds to be reasonable, allowable expenses. Specifically, this represents $100.00 for reasonable copying expenses; $2,000.00 for reasonable computer legal research expenses; $381.82 in travel and parking expenses; and $168.85 for expenses incurred delivering and mailing materials to the Court.
Finally, the Court will take a moment to address the ethical implications, beyond the CJA program, of submitting excessive CJA vouchers to the Court. Not only are court-appointed attorneys bound by the CJA guidelines, but as New Jersey attorneys they are also bound by the State of New Jersey's Rules of Professional Conduct ("RPC").
Finally, and on a related note, the Court cautions all law firms but especially larger ones to be diligent in overseeing all CJA vouchers that are submitted by their attorneys. These fee requests must be taken as seriously as bills sent to paying clients, and it is incumbent upon law firms to provide the level of oversight needed to
For the reasons stated above, the Court authorizes $13,500 in attorneys' fees and $2,650.67 in expenses to be paid to Gibbons P.C. for Michael Baldassare's services as court-appointed counsel for Defendant Terrence Mosley. An appropriate Order accompanies this Opinion.