justify excess compensation at maximum hourly rates, the basis for that conclusion must be set forth. If such circumstances are not found, an appropriate fee will be fixed by the court on a basis other than maximum hourly rates.
In passing, I would also note that the 1970 amendments were clearly intended to ease the financial burden of the attorney called upon to represent an indigent defendant in a federal criminal case. S. Rep. No. 91-790, 91st Cong., 2d Sess. at 14-15 (1970); H.R. Rep. No. 91-1546, 91st Cong., 2d Sess. at 4, 10 (1970). There remains, however, a substantial element of public service on the part of appointed counsel, for Congress made it plain that the fees allowable under the amended act "still [do] not provide full compensation." S. Rep. No. 91-790, supra, at 15. These matters must be kept in mind by the court when it fixes "fair compensation," and, in so doing, authorizes the expenditure of a very limited resource. See United States v. James, 301 F. Supp. 107, 116 (W.D. Tex. 1969).
Vincent presents a different and disturbing problem involving appointment practices in the District Court. Counsel secured an order from a United States Magistrate appointing her to represent her client pursuant to the Criminal Justice Act four months after the client was acquitted of assault on a police officer and related charges. The appointment was made nunc pro tunc as of November 24, 1970, the day on which the attorney had entered her appearance as retained defense counsel. On the basis of this order, the trial judge found that compensation in the amount of $2,620 was necessary to provide "fair compensation" for "extended or complex representation."
This court held in United States v. Perry, 153 U.S. App. D.C. 101, 471 F.2d 1069 (1972), that the act does not flatly prohibit nunc pro tunc orders when necessary to effectuate the statutory purposes.
A retroactive order, however, can only authorize payment for "representation furnished pursuant to the [implementation] plan prior to appointment." 18 U.S.C. § 3006A(b). Thus, for example, when clerical delay prevents the entry of a timely order of appointment or where, as was the case in Perry, substantial services are rendered in this court by counsel already appointed to represent the indigent in the District Court, a nunc pro tunc order clearly comports with the statutory goals. In this case, however, the attorney completed all legal services on behalf of her client in accordance with a retainer agreement presumably negotiated before her appearance was initially entered. Whether the act permits a retroactive appointment in these circumstances was left open in Perry.18
The Criminal Justice Act is not a form of federal fee insurance guaranteeing payment to counsel for the failure of his retained client to honor a fee agreement. United States v. James, 301 F. Supp. 107, 141 (W.D. Tex. 1969). The civil courts are fully capable of providing the attorney with appropriate redress in such circumstances. That the defendant is allegedly in default of a fee agreement is not standing alone, sufficient to warrant an appointment under the act.
The statute and this circuit's implementation plan make explicit provision for the case where a defendant, initially represented by retained counsel, seeks the appointment of Criminal Justice Act counsel, 18 U.S.C. § 3006A(c), Plan Part III(E).
In pertinent part, the statute provides:
If at any stage of the proceedings, including an appeal, the United States magistrate or court finds that the person is financially unable to pay counsel whom he had retained, it may appoint counsel as provided in subsection (b) and authorize payment as provided in subsection (d), as the interests of justice may dictate. 18 U.S.C. § 3006A(c).