B-156506, APR. 23, 1965, 44 COMP. GEN. 643

B-156506: Apr 23, 1965

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GOVERNMENT ATTORNEYS WHO ARE INVOLUNTARILY ASSIGNED TO REPRESENT. INDIGENT DEFENDANTS IN STATE OR FEDERAL COURTS MAY NOT HAVE SUCH SERVICE REGARDED AS IN FURTHERANCE OF A FEDERAL FUNCTION FOR WHICH THE APPROPRIATION OF THE EMPLOYING AGENCY IS AVAILABLE AND. ASKS OUR DECISION ON THREE QUESTIONS REGARDING THE PROPOSITION OF WHETHER AN ATTORNEY EMPLOYED BY THE FEDERAL GOVERNMENT MAY BE EXCUSED BY THE DEPARTMENT OR AGENCY CONCERNED WITHOUT LOSS OF PAY OR CHARGE TO LEAVE WHEN HE IS INVOLUNTARILY ASSIGNED BY A STATE COURT TO REPRESENT AN INDIGENT DEFENDANT WITHOUT COMPENSATION. THE FACTS GIVING RISE TO THE QUESTIONS ARE RECITED IN YOUR LETTER AS FOLLOWS: * * * AN ATTORNEY EMPLOYED BY A FEDERAL AGENCY IN ST.

B-156506, APR. 23, 1965, 44 COMP. GEN. 643

ATTORNEYS - GOVERNMENT - INDIGENT DEFENDANT REPRESENTATION - LEAVE, ETC. GOVERNMENT ATTORNEYS WHO ARE INVOLUNTARILY ASSIGNED TO REPRESENT, WITHOUT COMPENSATION, INDIGENT DEFENDANTS IN STATE OR FEDERAL COURTS MAY NOT HAVE SUCH SERVICE REGARDED AS IN FURTHERANCE OF A FEDERAL FUNCTION FOR WHICH THE APPROPRIATION OF THE EMPLOYING AGENCY IS AVAILABLE AND, THEREFORE, IN THE ABSENCE OF STATUTORY AUTHORITY, ATTORNEYS APPOINTED TO REPRESENT INDIGENT DEFENDANTS MAY NOT BE EXCUSED FOR SUCH SERVICE WITHOUT A CHARGE TO ANNUAL LEAVE OR LOSS OF COMPENSATION.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, APRIL 23, 1965:

YOUR LETTER OF APRIL 8, 1965, ASKS OUR DECISION ON THREE QUESTIONS REGARDING THE PROPOSITION OF WHETHER AN ATTORNEY EMPLOYED BY THE FEDERAL GOVERNMENT MAY BE EXCUSED BY THE DEPARTMENT OR AGENCY CONCERNED WITHOUT LOSS OF PAY OR CHARGE TO LEAVE WHEN HE IS INVOLUNTARILY ASSIGNED BY A STATE COURT TO REPRESENT AN INDIGENT DEFENDANT WITHOUT COMPENSATION.

THE FACTS GIVING RISE TO THE QUESTIONS ARE RECITED IN YOUR LETTER AS FOLLOWS:

* * * AN ATTORNEY EMPLOYED BY A FEDERAL AGENCY IN ST. LOUIS WHO IS A MEMBER OF THE MISSOURI BAR WAS APPOINTED TO REPRESENT AN INDIGENT MINOR IN A PROCEEDING IN THE CIRCUIT COURT OF THE CITY OF ST. LOUIS. THE JUDGE WAS CONTACTED BY THE AGENCY'S REGIONAL ATTORNEY IN AN UNSUCCESSFUL ATTEMPT TO HAVE THE EMPLOYEE EXCUSED.

THE JUDGE STATED THAT HE HAS MADE A NUMBER OF SUCH APPOINTMENTS AMONG FEDERAL EMPLOYEES, UNDER COLOR OF THE COMMON LAW RULE THAT ATTORNEYS AS OFFICERS OF THE COURT ARE SUBJECT TO SUCH APPOINTMENTS. MISSOURI HAS AN INTEGRATED BAR; AND THE RULES OF THE SUPREME COURT OF MISSOURI WHICH ARE APPLICABLE TO ALL STATE COURTS AND HAVE THE FORCE OF LAW CONTAIN IN TOTO THE CANONS OF ETHICS OF THE AMERICAN BAR ASSOCIATION. CANNON 4 PROVIDES THAT A LAWYER ASSIGNED AS COUNSEL FOR AN INDIGENT PRISONER OUGHT NOT TO ASK TO BE EXCUSED FOR ANY TRIVIAL REASON, AND SHOULD ALWAYS EXERT HIS BEST EFFORTS IN HIS BEHALF.

THE SOURCE FROM WHICH THE APPOINTMENTS ARE MADE IS A LIST OF ALL ATTORNEYS LICENSED TO PRACTICE SINCE 1958. NAMES ARE SELECTED AT RANDOM BY AN OFFICER OF THE COURT, AND THE ATTORNEYS ARE THEN APPOINTED PRO FORMA BY THE COURT.

THE SPECIFIC QUESTIONS PRESENTED BY YOU ARE AS FOLLOWS:

1. IS THERE ANY LEGAL OBJECTION TO AN AGENCY HEAD'S ESTABLISHING A GENERAL POLICY THAT WHEN AN ATTORNEY EMPLOYED BY THE AGENCY IS INVOLUNTARILY APPOINTED WITHOUT COMPENSATION TO REPRESENT AN INDIGENT IN A STATE COURT, HE MAY BE EXCUSED WITHOUT CHARGE TO LEAVE OR LOSS OF PAY FOR THE TIME REQUIRED?

2. IF SUCH A POLICY IS LEGALLY OBJECTIONABLE, IS THERE ANY LEGAL OBJECTION TO A POLICY WHICH WOULD EXCUSE THE EMPLOYEE UNDER THE SAME CIRCUMSTANCES FOR THE TIME REQUIRED UP TO A MAXIMUM OF 3 TO 5 DAYS?

3. IF THE POLICY REFERRED TO IN QUESTION 1 IS OBJECTIONABLE, IS THERE ANY LEGAL OBJECTION TO THE EXCUSING OF AN EMPLOYEE WHO IS SELECTED BY THE AGENCY AS A SUBSTITUTE FOR THE EMPLOYEE SELECTED BY THE COURT, WHEN SUCH SUBSTITUTION IS APPROVED BY THE COURT, FOR WHATEVER TIME THE CASE REQUIRES HIM TO BE ABSENT?

YOUR LETTER SUGGESTS CERTAIN REASONS WHY THE QUESTIONS SHOULD BE ANSWERED IN THE NEGATIVE. HOWEVER, CONSIDERATION OF THE PROBLEM LEADS US TO THE VIEW THAT THE DECISIVE ISSUE IN THE CASE IS WHETHER THE SERVICE PERFORMED BY FEDERALLY EMPLOYED ATTORNEYS IN SUCH CASES IS IN FURTHERANCE OF A FEDERAL FUNCTION FOR WHICH THE EMPLOYING AGENCY'S APPROPRIATIONS ARE AVAILABLE. WE ARE OF THE OPINION THAT FEDERAL EMPLOYEES ENGAGED IN ACTIVITIES, WHICH ARE NOT NECESSARY TO CARRY OUT THE FUNCTIONS OR DUTIES OF THE AGENCIES BY WHOM THEY ARE EMPLOYED,WHETHER VOLUNTARILY OR OTHERWISE, MAY BE COMPENSATED BY THE GOVERNMENT ONLY TO THE EXTENT THAT THEY HAVE TO THEIR CREDIT AND REQUEST A GRANT OF ANNUAL LEAVE WITH PAY.

THE RECENT ENACTMENT OF THE CRIMINAL JUSTICE ACT OF 1964, 78 STAT. 552, 18 U.S.C. 3006A, PUBLIC LAW 88-455, APPROVED AUGUST 20, 1964, IS A REFLECTION OF THE FEDERAL GOVERNMENT'S VIEW OF ITS OBLIGATION TO ATTORNEYS SERVING INDIGENT DEFENDANTS IN FEDERAL CASES. HOWEVER, THE 1964 ACT DOES NOT MAKE ANY PROVISION FOR THE PARTICIPATION OF ATTORNEYS EMPLOYED BY THE FEDERAL GOVERNMENT WITHOUT CHARGE TO ANNUAL LEAVE.

THE SITUATION PRESENTED BY YOUR LETTER IS ANALOGOUS TO THAT OF FEDERAL EMPLOYEES SERVING FOR NOMINAL FEES AS JURORS IN STATE COURTS WHICH WAS THE SUBJECT OF OUR DECISION IN 2 COMP. GEN. 448. REMEDY FOR THAT SITUATION WAS AFFORDED BY THE ACT OF JUNE 29, 1940, 54 STAT. 689, 5 U.S.C. 30N, COVERING SERVICES IN BOTH FEDERAL AND STATE COURTS.

UNTIL A SIMILAR LEGISLATIVE REMEDY IS AFFORDED, WE ARE REQUIRED TO OBJECT TO EXCUSING FEDERAL ATTORNEYS TO SERVE AS ATTORNEYS FOR INDIGENT DEFENDANTS IN FEDERAL OR STATE CASES WITHOUT LOSS OF PAY OR CHARGE TO LEAVE.