Months-long delays in paying federal court-appointed attorneys are triggering fears in Memphis and across the nation that continued holdups could slow the wheels of justice.
Those fears are compounded by a looming government shutdown if Congress doesn’t pass a budget for the new fiscal year that starts Wednesday.
A funding gap has halted payments since July for private-practice attorneys appointed by federal judges to represent indigent clients. Payments are expected to resume with the new fiscal year if Congress averts a shutdown. Even if that happens, however, critics say a growing pattern of pay delays may dissuade some attorneys from taking on cases.
“They knew it was coming,” said criminal defense attorney Josie Holland, who fears a possible chilling effect among attorneys participating in the local Criminal Justice Act (CJA) “panel”, a pool of court-appointed attorneys who supplement the Federal Public Defenders Office.
“People who have done panel work are thinking they should back away from it, if this is indicative of what it’s going to be like,” Holland said.
CJA panel attorneys handle roughly 40 percent of all indigent defense cases.
Holland said CJA runs out of money yearly, and attorneys are accustomed to it. Usually, though, the gap in payments lasts a handful of weeks, not months.
The nationwide problem has been worse this year as the federal judiciary operates on a budget that has been flat since the 2023 fiscal year despite rising inflation.
Before this year, the longest pay gap for panel attorneys came in 2013 amid unilateral slashes to judiciary programs that resulted in more than $15 million in deferred payments that September and October.
This year, payments halted in early July.
The problem could intensify. Should congress not match the requested amount of funding next year, $9.3 billion, the potential for long-term disruption in panel work will rise, defense attorneys said.
One attorney, speaking on background with The Institute for Public Service Reporting, said attorneys in other jurisdictions have filed motions to delay trials based on the argument they are not getting paid for their time. Attorneys interviewed for this article said, to their knowledge, this hasn’t happened yet in Memphis or Tennessee’s federal western district.
Western District of Tennessee Chief Judge Sheryl H. Lipman could not be reached for comment.
Ruchee Patel, a career criminal defense attorney who has practiced in both state and federal courts over the past 20 years, said she does not believe the typical flow of court hearings and trials will slow right away.
She describes the work as a good source of income, saying panel attorneys are known to plan for lengthy time periods between the final gavel and the paystub.
“You understand you get paid someday. You have no ground or cause to say ‘You didn’t pay me within 30 days,’” Patel said. “A lot of people in the court, even, do not understand how long it can take to get paid.”
Ideally, panel attorneys do not rely solely on federal cases, even though the current system doesn’t make that easy, Patel said. The amount of time spent on federal cases is typically higher than state cases. Weaving in-between both justice systems can be difficult.
Still, Patel said, this year’s fiscal crisis and next year’s likely crisis will have adverse impacts on indigent defense cases.
Critically, defense attorneys will be unable to hire professionals central to their client’s case such as expert witnesses, translators, or even a paralegal.
“And that does hurt the client’s defense,” Patel said.
In the longer term, she said, the flow of seasoned attorneys skilled enough to be selected by the CJA panel could dry up. Being appointed to the CJA panel was once seen as a high bar cleared only by skilled defense attorneys, but the panel appointment is losing its luster.
“What’s happening now is that the attorneys are not applying. A lawyer that has cut their chops in the last 10 years is seeing the turmoil, the government shutdowns, the pay freezes, and they’re saying, ‘Hard pass,’” Patel said.
The likelihood of an even longer funding gap in 2026 is already sparking alarm among top judiciary officials.
In late July, an internal memo by Judge Robert Conrad, the director of the Administrative Office of the U.S. Courts, warned that an insufficient $1.57 billion budget for defender services could mean the loss of up to 600 salaried public defenders nationwide or even longer delays in paying court-appointed attorneys.
What kind of burden that could place on courts remains to be seen. Panel attorneys are selected for an indigent client if there is a conflict of interest in the district public defender’s office or if the office does not have capacity for a case.
CJA panel attorneys, Conrad wrote, could see their payments suspended as early as June, 2026.
The funding squeeze is further compounded by the Trump administration’s mandate for federal prosecutions that seek the death penalty. The judiciary asked for an additional $15 million for defender services in anticipation of an increase in capital cases, according to the Death Penalty Information Center.
Those pressures create disincentives for many attorneys considering court-appointed assignments.
In general, criminal defense attorneys tend to have a solo practice or a small firm. Public defense doesn’t pay well; it’s not an area of law that large firms often invest in.
And while criminal defense attorneys know they cannot bill the federal court system until after the final gavel bangs, extending an already “long IOU,” Patel said, will be detrimental to these small firms and solo practitioners.
These factors also are prompting older, experienced attorneys to leave the field altogether, Patel said:
“Everywhere you look it’s retirement, retirement.”
