The opinion of the court was delivered by: STALEY
Applications for payment of attorney's fees under the Criminal Justice Act, 18 U.S.C. § 3006A(d), in the total amounts of $1095 to Orlando N. Prosperi, Esq., of $1005 to Henry A. Martin, Esq., and of $1045 to Vincent J. Morocco, Esq., approved by the district court, are disapproved to the extent that such payments would exceed $500 in compensation for services, plus the expenses approved by the district court.
The petitioners were appointed under the Act to defend persons accused of the felony of bank robbery, 18 U.S.C. § 2113. Each attorney spent at least 36 hours in the preparation of his case and over 40 hours in open court. The trial judge approved the applicants' requests for payment at the maximum rates of $15 per hour for court appearances and $10 per hour for time spent in preparation, and approved their itemized expenses.
Compensation for Services
While I entertain no doubts that the petitioners herein provided services worth at least the applied-for amounts, the Act generally limits the total amount recoverable in felony cases to $500. The Act, however, provides that
"* * * In extraordinary circumstances, payment in excess of the limits stated herein may be made if the district court certifies that such payment is necessary to provide fair compensation for protracted representation, and the amount of the excess payment is approved by the chief judge of the circuit." 18 U.S.C. § 3006A(d).
In reaching this conclusion, I must note the strict position taken by my brethren in the similar cases to date. See United States v. Moore, D.D.C., 258 F. Supp. 790 opinion by Chief Judge Bazelon filed July 12, 1966; United States v. Whitney, 65 Crim. 160, S.D.N.Y., and United States v. Dodge, 64 Crim. 619, S.D.N.Y., opinions filed by Chief Judge Lumbard on March 30, 1966; and United States v. Pope, 251 F. Supp. 234 (D.Neb., 1966) opinion by Judge Van Pelt, approved by Chief Judge Vogel. In Moore and Whitney, payment at the statutory rates would have entitled the attorneys to payments in excess of $500, but the chief judges rejected the applications because the attorneys had spent only about seventy hours in toto. In Dodge and Pope, compensation in excess of $500 was allowed, but in these cases the attorneys spent three weeks or more in open court alone, thus necessarily qualifying as "protracted" cases.
This narrow reading of the exception to the Act's $500 ceiling is necessary in view of Congress' intent to make recovery less than compensatory. The salutary purpose of the Act is to provide adequate legal representation to defendants otherwise unable to employ counsel. In providing for compensation to the attorneys appointed under the Act, Congress sought to ensure that experienced, capable members of the bar could be called upon without thereby causing them undue financial sacrifices. Nevertheless, it was clear to Congress that the compensatory scheme would not equal the fees which would be paid by a normal client. As noted in the Minority Report of the House Subcommittee on the Judiciary, the rates of compensation were "conceded by virtually every witness at the hearings to be below normal levels of compensation in legal practice," but the payment schedule, as enacted, was "widely supported as a reasonable basis upon which lawyers could carry out their profession's responsibility to accept court appointments, without either personal profiteering or undue financial sacrifice." 2 U.S.Code Cong. & Adm.News 2997-2998 (1964).
As passed by the House of Representatives, recovery in excess of $500 would never have been allowed. H.R. 7457, 88th Cong., 2d Sess. (1964). In the Conference Committee, the Senate version of the Act, S. 1057, 88th Cong., 1st Sess. (1963), which would not have limited total compensation, was rejected, although the Conference Report noted the concessions to the Senate that appeals were to be treated as separate cases, and that an exception for "protracted" cases be made in recognition of the "many cases of extremely long duration." 2 U.S.Code Cong. & Ad. News 3002 (1964). Thus, I think that to fall within the exception, a case must involve an extraordinarily lengthy trial, or, by reason of its intricacies or novelty, an extraordinary amount of time out of court so that it would be highly unjust to limit the attorney's compensation to $500.
The federal judiciary has well recognized that the thrust of the Act was not to relieve the bar of its obligation to donate, at least in part, its services to those unable to pay. The Report of the Committee to Implement the Criminal Justice Act of 1964, approved by a special session of the Judicial Conference of the United States on January 13, 1965, states that
Reimbursement for Expenses
The applications submitted to me for approval included not only attorney's fees, but also claims for reimbursement of out-of-pocket expenses such as telephone calls and travel. The Act does not require the approval of the chief judge for expenses. Therefore, these claims for ...