When the Government Shuts Down, Justice Shuts Down: A Habeas Lawyer Forced to Work for Free

When the government shuts down, we usually think of national parks closing or passport delays, not the justice system grinding to a halt. But that’s exactly what’s happening right now in Mahmoud v. Washington, No. 3:23-cv-05494-DGE-TLF, 2025 U.S. Dist. LEXIS 207271 (W.D. Wash. Oct. 21, 2025), where United States Magistrate Judge Theresa L. Fricke just ordered a Criminal Justice Act (CJA) attorney to keep working on a habeas case without pay.

This case reveals a deeper problem that few people outside the system understand: when the federal government stops paying court-appointed lawyers, it’s not just lawyers who suffer, it’s prisoners, families, and innocent people fighting for their freedom.

No Right to Counsel in Habeas, But Still Forced to Serve

Habeas corpus petitions under 28 U.S.C. § 2254 allow state prisoners to challenge unconstitutional convictions or sentences in federal court. But unlike trial or direct appeal, there’s no constitutional right to a lawyer in habeas proceedings. Courts sometimes appoint one under the CJA if the case is complex or requires investigation, but that appointment doesn’t mean guaranteed funding when Congress fails to pass a budget.

In Mahmoud, the court appointed counsel from the CJA panel to represent a state prisoner whose case was stayed pending related state proceedings. When the government shut down and CJA funding ran dry on July 3, 2025, counsel filed a motion to withdraw, explaining that she hadn’t been paid for months and could not keep absorbing unpaid labor costs.

The court denied the motion. Judge Fricke acknowledged the hardship but said she couldn’t allow withdrawal because counsel had already been representing the client for over two years, was deeply familiar with the case, and replacing her would cause delay and “injustice.” In other words, she must continue litigating, for free, until Congress fixes the problem.

Lawyers Are Professionals, Not Volunteers

The court’s reasoning makes practical sense on paper, but it misses the reality that small-firm and solo lawyers can’t afford to float unpaid federal work indefinitely. The attorney explained that the ongoing shutdown “creates an implicit conflict between the lawyer and her client,” forcing her to choose between financial survival and her duty to the client.

She also pointed out that professional conduct rules allow a lawyer to withdraw when representation becomes an unreasonable financial burden. But under local rules, only the court can approve withdrawal, and in this case, the court refused.

So, what’s the message to lawyers? You can be ordered to keep working on complex constitutional litigation with no idea when, or if, you’ll be paid.

The Coming Collapse of the CJA Panel System

This is the kind of decision that will drive CJA panel attorneys to resign en masse. Why would any private lawyer continue taking appointments that may turn into months of unpaid work?

CJA panel attorneys aren’t government employees; they’re independent lawyers who agree to take cases at reduced hourly rates to ensure the poor have representation. When those payments stop, the entire system breaks down. And when the system breaks, the fallout hits prisoners first.

• Habeas petitioners, many serving wrongful convictions or illegal sentences, will lose access to counsel altogether.
• Appointed attorneys will prioritize paying clients to stay afloat.
• Federal courts will see even more delays, backlogs, and dismissed petitions.

Innocent or illegally-sentenced prisoners will languish because Congress can’t, or won’t, fund the justice system it created.

The Hidden Human Cost of the Shutdown

Behind every habeas case is a person, someone claiming the system got it wrong. These are not frivolous cases. Many involve ineffective assistance of counsel, Brady violations, and illegal sentencing. Without appointed counsel, most petitioners have no realistic chance of navigating federal procedure or developing the record needed for relief.

So when Congress fails to fund CJA payments, it’s not just a budget issue, it’s a justice issue. It’s about whether people with valid claims will ever get heard, or whether the system will simply grind them down through neglect.

The Fallout of The Judge’s Order

Mahmoud v. Washington is a warning shot. Forcing appointed lawyers to work for free doesn’t save money; it drives good lawyers away and leaves the most vulnerable without help. When justice becomes optional depending on the federal budget, the Constitution means little to the people it’s supposed to protect.

I have helped attorneys and their clients across the country file for federal habeas relief under § 2254 and § 2255. If you or someone you know needs help understanding their options, contact me.