Application for Appointment of Counsel

At long last, we now have a process for appointing counsel to represent homeowners who can't afford an attorney!

Nearly eight years after CAFRA's right to counsel provisions took effect, Attorney John Balazs and his clients Rollie and Scharlynn Trout blaze the first trail establishing an appointment of counsel process for owners whose primary residence has been seized.

Congress responded to numerous horror stories of abusive forfeiture actions across the nation by enacting our nation’s first and only federal forfeiture reform, the Civil Asset Forfeiture Reform Act of 2000 (CAFRA). One of CAFRA’s key provisions requires courts to appoint counsel to represent owners of seized homes who cannot afford a lawyer – upon request of the forfeiture victim. But sadly, in the eight years since Congress enacted CAFRA only a small handful – out of tens of thousands of forfeiture cases – have received court-appointed counsel now required by law. (For more information, pluss how we are working to save CAFRA's right to counsel provisions, see FEAR's Gideon Project, and download our tri-fold pdf Gideon Project brochure.)

Congress charged the Legal Services Corporation with the job of providing attorneys for homeowners whose property has been seized and cannot afford a lawyer, and estimated that it would reimburse LSC $5 million for representation of eligible property owners over the 2001-2005 period. However, LSC reported to Congress that LSC received only “one request from court personnel” for representation mandated by CAFRA prior to 2003, plus “several additional requests for cases in Washington DC and California” during the year ending March, 2004. Then, during their 2004-2005 reporting period, “LSC obtained representation for a claimant in California.”¹ And in February 2008, LSC said that appointments for claimants defending their residences “are approaching one a month” – nationwide.

Until now, even on the rare occasion when someone in the courtroom knew to request appointment of counsel, no process existed by which to do so.

On July 29, 2008, United States District Court Judge Garland E. Burrell, Jr. granted pro se Claimants Rollie and Scharlynn Trout's Application for Appointment of Counsel and Order, appointing Sacramento attorney John Balazs to represent the Garden Valley, California couple. Mr. Balazs sought appointment to represent the Trouts pursuant to 18 U.S.C. § 983 (b)(2)(A), which provides that, upon request by an owner who "is financially unable to obtain representation," and whose primary residence has been seized, "the court shall insure that the person is represented by an attorney for the Legal Services Corporation." The Trouts supported the Application with financial affidavits (CJA financial affidavit form here), and attorney Balazs additionally attached a letter from Legal Services Corporation consenting to his appointment under the statute. LSC Vice President and General Counsel Victor Fortuno pointed out that payment for the Trouts' counsel will come from the government's asset forfeiture fund:

"... Payment for counsel is handled through court order at CJA [Criminal Justice Act] rates regardless of the outcome of the case. After the Court issues an order for fees, the U.S. Attorney's office submits that order to the Department of Treasury for payment from the forfeiture fund. ... "

LSC also provided a sample order for appointment of counsel for homeowners (MS Word or Rich Text Format). Upon request of the forfeiture victim CAFRA requires judges to appoint counsel to represent owners of seized homes who cannot afford a lawyer.² Also upon request, CAFRA allows appointment of counsel in civil forfeiture cases that do not involve a primary residence whenever the claimant has appointed counsel in a related criminal case.³

Endnotes:

1. Legal Services Corporation Semiannual Report to the Congress for the Period October 1, 2003 – March 31, 2004, page 11; and LSC Semi-Annual Report to Congress for the Period October 1, 2004 – March 31, 2005, page 17.

2. 18 U.S.C. § 983(b)(2).

3. 18 U.S.C. § 983(b)(1).

FEAR's Gideon Project seeks to afford owners of seized property a fair chance in court by:

educating judges, court clerks, and criminal defense attorneys about forfeiture claimants' statutory right to counsel; and
providing research materials and the nation's only fofeiture training program for criminal defense attorneys and pro-se lititgants which will be made available at low cost to participants.

Click here to save or print FEAR's tri-fold Gideon Project brochure (PDF file).