B-156344, APR. 2, 1965, 44 COMP. GEN. 605

B-156344: Apr 2, 1965

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ATTORNEYS - INDIGENT DEFENDANT REPRESENTATION - COMPENSATION EFFECT PRIVATE ATTORNEYS WHO ARE APPOINTED BY THE COURT PURSUANT TO THE CRIMINAL JUSTICE ACT OF 1964. TO REPRESENT INDIGENT DEFENDANTS AND WHO RECEIVE COMPENSATION FOR SUCH SERVICES MAY NOT HAVE SUCH SERVICES WHICH ARE RENDERED TO THE DEFENDANT REGARDED AS SERVICES TO THE UNITED STATES OR AS ESTABLISHING AN EMPLOYER-EMPLOYEE RELATIONSHIP WITH THE GOVERNMENT SO AS TO BRING THE INDIVIDUALS WITHIN THE CONCEPT OF HOLDING A CIVILIAN OFFICE AND. THE DUAL COMPENSATION ACT IS NOT FOR APPLICATION. THE QUESTION PRESENTED BY YOU IS. HOLD A CIVILIAN OFFICE AS THAT TERM IS DEFINED IN SECTION 101 OF THE DUAL COMPENSATION ACT. ATTORNEYS ARE OFFICERS OF THE COURT BY VIRTUE OF THEIR MEMBERSHIP IN THE BAR.

B-156344, APR. 2, 1965, 44 COMP. GEN. 605

ATTORNEYS - INDIGENT DEFENDANT REPRESENTATION - COMPENSATION EFFECT PRIVATE ATTORNEYS WHO ARE APPOINTED BY THE COURT PURSUANT TO THE CRIMINAL JUSTICE ACT OF 1964, 18 U.S.C. 3006A, TO REPRESENT INDIGENT DEFENDANTS AND WHO RECEIVE COMPENSATION FOR SUCH SERVICES MAY NOT HAVE SUCH SERVICES WHICH ARE RENDERED TO THE DEFENDANT REGARDED AS SERVICES TO THE UNITED STATES OR AS ESTABLISHING AN EMPLOYER-EMPLOYEE RELATIONSHIP WITH THE GOVERNMENT SO AS TO BRING THE INDIVIDUALS WITHIN THE CONCEPT OF HOLDING A CIVILIAN OFFICE AND, THEREFORE, THE DUAL COMPENSATION ACT IS NOT FOR APPLICATION.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, APRIL 2, 1965:

YOUR LETTER OF MARCH 16, 1965, ASKS OUR DECISION WHETHER COMPENSATED SERVICES RENDERED BY ATTORNEYS AND OTHERS FOR DEFENDANTS UNDER THE CRIMINAL JUSTICE ACT OF 1964, 78 STAT. 552, PUBLIC LAW 88-455, APPROVED AUGUST 20, 1964, 18 U.S.C. 3006A, MIGHT INVOLVE THE DUAL COMPENSATION ACT, PUBLIC LAW 88-448, 78 STAT. 484, 5 U.S.C. 3101 NOTE.

SECTION 201 OF THE DUAL COMPENSATION ACT, 5 U.S.C. 3102, REQUIRES, WITH SOME EXCEPTIONS, THAT THE RETIRED PAY OF RETIRED OFFICERS OF REGULAR COMPONENTS OF THE UNIFORMED SERVICES, HOLDING CIVILIAN OFFICES, BE REDUCED. SECTION 301 OF THE ACT, 5 U.S.C. 3105, GENERALLY LIMITS THE NUMBER OF HOURS FOR WHICH CIVILIAN OFFICERS AND EMPLOYEES MAY RECEIVE BASIC COMPENSATION FROM MORE THAN ONE CIVILIAN OFFICE.

THE QUESTION PRESENTED BY YOU IS, THEREFORE, WHETHER ATTORNEYS OR OTHERS RENDERING SERVICES WITHIN THE PURVIEW OF THE CRIMINAL JUSTICE ACT OF 1964, BY VIRTUE OF THE RENDITION OF SUCH SERVICES AND THE ACCEPTANCE OF COMPENSATION, HOLD A CIVILIAN OFFICE AS THAT TERM IS DEFINED IN SECTION 101 OF THE DUAL COMPENSATION ACT, 5 U.S.C. 3101.

THE CRIMINAL JUSTICE ACT OF 1964 REQUIRES THAT THE PROVISION FOR COUNSEL UNDER THE APPROVED PLAN IN EACH DISTRICT SHALL CONFORM TO ONE OF THE FOLLOWING:

(1) REPRESENTATION BY PRIVATE ATTORNEYS;

(2) REPRESENTATION BY ATTORNEYS FURNISHED BY A BAR ASSOCIATION OR A LEGAL AID AGENCY; OR

(3) REPRESENTATION ACCORDING TO A PLAN CONTAINING A COMBINATION OF THE FOREGOING.

ATTORNEYS ARE OFFICERS OF THE COURT BY VIRTUE OF THEIR MEMBERSHIP IN THE BAR. HOWEVER, THEY NEVER HAVE BEEN AND THEY COULD NOT REASONABLY BE REGARDED AS HOLDING OFFICE IN THE JUDICIAL BRANCH OF THE GOVERNMENT BECAUSE OF THAT RELATIONSHIP. AS POINTED OUT IN YOUR LETTER THE USUAL ELEMENTS REGARDED AS ESTABLISHING THE EMPLOYER-EMPLOYEE RELATIONSHIP BETWEEN THE GOVERNMENT AND AN INDIVIDUAL ARE LACKING.

PRIVATE ATTORNEYS TRADITIONALLY HAVE SERVED WITHOUT COMPENSATION AS COUNSEL FOR INDIGENT DEFENDANTS UPON APPOINTMENT BY A COURT; AND WE ARE OF THE OPINION THAT THE MERE PROVISION IN THE ACT FOR THE PAYMENT OF COMPENSATION IN SUCH CASES, WITHOUT MORE, COULD NOT OPERATE TO APPOINT AN ATTORNEY TO A CIVILIAN OFFICE OF THE GOVERNMENT.

THE INVESTIGATIVE, EXPERT OR OTHER SERVICES ARE OBTAINED BY COUNSEL ON BEHALF OF DEFENDANTS UPON AUTHORIZATION OF THE COURTS AND SUCH SERVICES ARE RENDERED TO A DEFENDANT THROUGH COUNSEL AND NOT TO THE UNITED STATES. CONSEQUENTLY, WHETHER THE INVESTIGATIVE, EXPERT AND OTHER SERVICES BE RENDERED BY INDIVIDUALS OR ORGANIZATIONS WE DO NOT REGARD THE DUAL COMPENSATION ACT AS BEING APPLICABLE.

WE CONCUR IN THE VIEW EXPRESSED BY YOU THAT A REGULATION UNDER SECTION 201 (E) OF THE DUAL COMPENSATION ACT, 5 U.S.C. 3102 (E), EXCEPTING FROM ITS PROVISIONS RETIRED OFFICERS SERVING AS COUNSEL UNDER THE CRIMINAL JUSTICE ACT OF 1964 WOULD BE MISLEADING AND THEREFORE UNDESIRABLE.

HOWEVER, WE INVITE YOUR ATTENTION TO SECTION 8 OF THE DISTRICT OF COLUMBIA LEGAL AID ACT, 74 STAT. 231, PUBLIC LAW 85-531, APPROVED JUNE 27, 1960. THAT SECTION EXEMPTS VOLUNTEER ATTORNEYS SERVING THE LEGAL AID AGENCY WITHOUT COMPENSATION AS COUNSEL IN INDIGENT CASES FROM THE SO- CALLED "CONFLICT OF INTEREST" STATUTES IN REGARD TO SERVICE COVERED BY THE ACT. SEE ALSO IN THAT REGARD SECTION 2, PUBLIC LAW 87-849, 76 STAT. 1126.

YOUR LETTER EVIDENTLY CONTEMPLATES SITUATIONS IN WHICH STAFF ATTORNEYS AND OTHERS HOLDING CIVILIAN OFFICES IN GOVERNMENT DEPARTMENTS AND AGENCIES WILL RENDER SERVICES WITHIN THE PURVIEW OF THE CRIMINAL JUSTICE ACT WHILE ON ANNUAL LEAVE OR ON THEIR OWN TIME OUTSIDE THEIR REGULAR WORKING HOURS. SINCE THERE MAY ARISE IN SUCH CASES QUESTIONS RELATING TO THE CONFLICT OF INTEREST STATUTES OR CONCERNING THE LEGAL ADEQUACY OF THE ASSISTANCE OF COUNSEL UNDER ARTICLE VI OF THE AMENDMENTS TO THE CONSTITUTION, IT MAY BE THAT YOU WOULD DESIRE THE VIEWS OF THE DEPARTMENT OF JUSTICE UPON THOSE MATTERS. LIKEWISE, THERE COULD ARISE IN SPECIFIC CASES THE QUESTION OF INCOMPATIBILITY OF THE PARTICULAR ASSIGNMENT WITH THE OFFICER'S OR EMPLOYEE'S REGULAR POSITION WITH THE FEDERAL GOVERNMENT. IT WOULD SEEM THAT THE DETERMINATION IN THAT AREA WOULD REST GENERALLY WITH THE PARTICULAR AGENCY CONCERNED AND THE COURTS.