ENROLLED

Senate Bill No. 94

(By Senators Wooton, Anderson, Bowman, Dittmar, Grubb, Oliverio, Ross, Schoonover, Wagner, Buckalew and Scott)

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[Passed March 15, 1996; in effect from passage.]

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AN ACT to amend and reenact sections two, six, eight, nine, thirteen-a, fifteen and seventeen, article twenty-one, chapter twenty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to public defender services generally; defining eligible proceedings to include ancillary proceedings to enhance sentences and for the forfeiture of property; defining legal representation to include services as guardian ad litem; requiring public defender corporations to file periodic reports; removing the requirement that one public defender serve two certain judicial circuits; eliminating requirement that panel attorneys file written request for appointments to represent eligible clients; compensation rates for attorney and paralegal services; limitations on reimbursements for transcripts, court reporter and transcription services, travel expenses and investigative services; voucher requirements and corrections; terms of governor's appointees to boards of directors of public defender corporations; public notice required for meetings of such boards of directors; limitations on compensation benefits to part-time employees of public defender corporations; removal of such employees; eligibility of member of such boards of directors to represent eligible clients; and dismissal of certain employees of public defender corporations for violation of provisions restricting the part-time practice of law by such employees.

Be it enacted by the Legislature of West Virginia:
That sections two, six, eight, nine, thirteen-a, fifteen and seventeen, article twenty-one, chapter twenty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted, all to read as follows:
ARTICLE 21. PUBLIC DEFENDER SERVICES.
§29-21-2. Definitions.

As used in this article, the following words and phrases are hereby defined:
(1) "Eligible client": Any person who meets the requirements established by this article to receive publicly funded legal representation in an eligible proceeding as defined herein;
(2) "Eligible proceeding": Criminal charges which may result in incarceration; juvenile proceedings; proceedings to revoke parole or probation if the revocation may result in incarceration; contempt of court; child abuse and neglect proceedings which may result in a termination of parental rights; mental hygiene commitment proceedings; extradition proceedings; proceedings which are ancillary to an eligible proceeding, including, but not limited to, proceedings to enhance sentences brought pursuant to sections eighteen and nineteen, article eleven, chapter sixty-one of this code, forfeiture proceedings brought pursuant to article seven, chapter sixty-a of this code, and proceedings brought to obtain extraordinary remedies; and appeals from or post-conviction challenges to the final judgment in an eligible proceeding. Legal representation provided pursuant to the provisions of this article is limited to the court system of the state of West Virginia, but does not include representation in municipal courts unless the accused is at risk of incarceration;
(3) "Legal representation": The provision of any legal services or legal assistance as counsel or guardian ad litem consistent with the purposes and provisions of this article;
(4) "Private practice of law": The provision of legal representation by a public defender or assistant public defender to a client who is not entitled to receive legal representation under the provisions of this article, but does not include, among other activities, teaching;
(5) "Public defender": The staff attorney employed on a full-time basis by a public defender corporation who, in addition to providing direct representation to eligible clients, has administrative responsibility for the operation of the public defender corporation. The public defender may be a part-time employee if the board of directors of the public defender corporation finds efficient operation of the corporation does not require a full-time attorney and the executive director approves such part-time employment;
(6) "Assistant public defender": A staff attorney providing direct representation to eligible clients whose salary and status as a full-time or part-time employee are fixed by the board of directors of the public defender corporation;
(7) "Public defender corporation": A corporation created under section eight of this article for the sole purpose of providing legal representation to eligible clients; and
(8) "Public defender office": An office operated by a public defender corporation to provide legal representation under the provisions of this article.
§29-21-6. Powers, duties and limitations.
(a) Consistent with the provisions of this article, the agency is authorized to make grants to and contracts with public defender corporations and with individuals, partnerships, firms, corporations and nonprofit organizations, for the purpose of providing legal representation under this article, and may make such other grants and contracts as are necessary to carry out the purposes and provisions of this article.
(b) The agency is authorized to accept, and employ or dispose of in furtherance of the purposes of this article, any money or property, real, personal or mixed, tangible or intangible, received by gift, devise, bequest or otherwise.
(c) The agency shall establish and the executive director or his designate shall operate a criminal law research center as provided for in section seven of this article. This center shall undertake directly, or by grant or contract, to serve as a clearinghouse for information; to provide training and technical assistance relating to the delivery of legal representation; and to engage in research, except that broad general legal or policy research unrelated to direct representation of eligible clients may not be undertaken.
(d) The agency shall establish and the executive director or his designate shall operate an accounting and auditing division to require and monitor the compliance with this article by public defender corporations and other persons or entities receiving funding or compensation from the agency. This division shall review all plans and proposals for grants and contracts, and shall make a recommendation of approval or disapproval to the executive director. The division shall prepare, or cause to be prepared, reports concerning the evaluation, inspection or monitoring of public defender corporations and other grantees, contractors, persons or entities receiving financial assistance under this article, and shall further carry out the agency's responsibilities for records and reports as set forth in section eighteen of this article.
The accounting and auditing division shall require each public defender corporation to periodically report on the billable and nonbillable time of its professional employees, including time utilized in administration of the respective offices, so as to compare such time to similar time expended in nonpublic law offices for like activities.
The accounting and auditing division shall provide to the executive director assistance in the fiscal administration of all of the agency's divisions. Such assistance shall include, but not be limited to, budget preparation and statistical analysis.
(e) The agency shall establish and the executive director or a person designated by the executive director shall operate an appellate advocacy division for the purpose of prosecuting litigation on behalf of eligible clients in the supreme court of appeals. The executive director or a person designated by the executive director shall be the director of the appellate advocacy division. The appellate advocacy division shall represent eligible clients upon appointment by the circuit courts, or by the supreme court of appeals. The division may, however, refuse such appointments due to a conflict of interest or if the executive director has determined the existing caseload cannot be increased without jeopardizing the appellate division's ability to provide effective representation. In order to effectively and efficiently utilize the resources of the appellate division the executive director may restrict the provision of appellate representation to certain types of cases.
The executive director is empowered to select and employ staff attorneys to perform the duties prescribed by this subsection. The division shall maintain vouchers and records for representation of eligible clients for record purposes only.
§29-21-8. Public defender corporations.
(a) In each judicial circuit of the state, there is hereby created a "public defender corporation" of the circuit. The purpose of these public defender corporations is to provide legal representation in the respective circuits in accordance with the provisions of this article.
(b) If the judge of a single-judge circuit, the chief judge of a multi- judge circuit or a majority of the active members of the bar in the circuit determine there is a need to activate the corporation, they shall certify that fact in writing to the executive director. The executive director shall allocate funds to those corporations so certifying in the order in which he or she deems most efficient and cost effective.
(c) Public defender corporations may apply in writing to the executive director for permission to merge to form multi-circuit or regional public defender corporations. Applications for mergers shall be subject to the review procedures set forth in section eleven of this article.
§29-21-9. Panel attorneys.
(a) In each circuit of the state, the circuit court shall establish and maintain regional and local panels of private attorneys-at-law who shall be available to serve as counsel for eligible clients.
An attorney-at-law may become a panel attorney and be enrolled on the regional or local panel, or both, to serve as counsel for eligible clients, by informing the court. An agreement to accept cases generally or certain types of cases particularly shall not prevent a panel attorney from declining an appointment in a specific case.
(b) In all cases where an attorney-at-law is required to be appointed for an eligible client, the appointment shall be made by the circuit judge. In circuits where a public defender office is in operation, the judge shall appoint the pubic defender office unless such appointment is not appropriate due to a conflict of interest or unless the public defender corporation board of directors or the public defender, with the approval of the board, has notified the court that the existing caseload cannot be increased without jeopardizing the ability of defenders to provide effective representation.
If the public defender office is not available for appointment, the court shall appoint one or more panel attorneys from the local panel. If there is no local panel attorney available, the judge shall appoint one or more panel attorneys from the regional panel. If there is no regional panel attorney available, the judge may appoint a public defender office from an adjoining circuit if such public defender office agrees to the appointment.
In circuits where no public defender office is in operation, the judge shall first refer to the local panel and then to the regional panel in making appointments, and if an appointment cannot be made from the panel attorneys, the judge may appoint the public defender office of an adjoining circuit if the office agrees to the appointment. In any circuit, when there is no public defender, or assistant public defender, local panel attorney or regional panel attorney available, the judge may appoint one or more qualified private attorneys to provide representation, and such private attorney or attorneys shall be treated as panel attorneys for that specific case. In any given case, the appointing judge may alter the order in which attorneys are appointed if the case requires particular knowledge or experience on the part of the attorney to be appointed.
§29-21-13a. Compensation and expenses for panel attorneys.
(a) All panel attorneys shall maintain detailed and accurate records of the time expended and expenses incurred on behalf of eligible clients, and upon completion of each case, exclusive of appeal, shall submit to the appointing court a voucher for services. Claims for fees and expense reimbursements shall be submitted to the appointing court on forms approved by the executive director. Claims submitted more than four years after the last date of service shall be rejected.
The appointing court shall review the voucher to determine if the time and expense claims are reasonable, necessary and valid, and shall forward the voucher to the agency with an order approving payment of the claimed amount or of such lesser sum the court considers appropriate.
(b) Notwithstanding any other provision of this section to the contrary, public defender services may pay by direct bill, prior to the completion of the case, litigation expenses incurred by attorneys appointed under this article.
(c) Notwithstanding any other provision of this section to the contrary, a panel attorney may be compensated for services rendered and reimbursed for expenses incurred prior to the completion of the case where: (1) More than six months have expired since the commencement of the panel attorney's representation in the case; and (2) no prior payment of attorney fees has been made to the panel attorney by public defender services during the case. The amounts of any fees or expenses paid to the panel attorney on such an interim basis, when combined with any such amounts paid to the panel attorney at the conclusion of the case, shall not exceed the limitations on fees and expenses imposed by this section.
(d) In each case in which a panel attorney provides legal representation under this article, and in each appeal after conviction in circuit court, the panel attorney shall be compensated at the following rates for actual and necessary time expended for services performed and expenses incurred subsequent to the effective date of this article:
(1) For attorney's work performed out of court, compensation shall be at the rate of forty-five dollars per hour. For paralegal's work performed out of court for the attorney, compensation shall be at the rate of the paralegal's regular compensation on an hourly basis or, if salaried, at the hourly rate of compensation which would produce the paralegal's current salary, but in no event shall the compensation exceed twenty dollars per hour. Out-of-court work includes, but is not limited to, travel, interviews of clients or witnesses, preparation of pleadings and prehearing or pretrial research.
(2) For attorney's work performed in court, compensation shall be at the rate of sixty-five dollars per hour. No compensation for paralegal's work performed in court shall be allowed. In-court work includes, but is not limited to, all time spent awaiting hearing or trial if the presence of the attorney is required.
(3) The maximum amount of compensation for out-of-court and in-court work under this subsection is as follows: For proceedings of any kind involving felonies for which a penalty of life imprisonment may be imposed, such amount as the court may approve; for all other eligible proceedings, three thousand dollars unless the court, for good cause shown, approves payment of a larger sum.
(e) Actual and necessary expenses incurred in providing legal representation for proceedings of any kind involving felonies for which a penalty of life imprisonment may be imposed, including, but not limited to, expenses for travel, transcripts, salaried or contracted investigative services and expert witnesses, shall be reimbursed in such amount as the court may approve. For all other eligible proceedings, actual and necessary expenses incurred in providing legal representation, including, but not limited to, expenses for travel, transcripts, salaried or contracted investigative services and expert witnesses, shall be reimbursed to a maximum of fifteen hundred dollars unless the court, for good cause shown, approves reimbursement of a larger sum.
Expense vouchers shall specifically set forth the nature, amount and purpose of expenses incurred and shall provide such receipts, invoices or other documentation required by the executive director and the state auditor:
(1) (A) Reimbursement of expenses for production of transcripts of proceedings reported by a court reporter is limited to the cost per original page set forth in section four, article seven, chapter fifty-one of this code. Reimbursement of the cost of copies of such transcripts is limited to twenty- five cents per page.
(B) (i) There shall be no reimbursement of expenses for or production of a transcript of a preliminary hearing before a magistrate or juvenile referee, or of a magistrate court jury trial, which has been reported by a court reporter at the request of the attorney, where the preliminary hearing or jury trial has also been recorded electronically in accordance with the provisions of section eight, article five, chapter fifty of this code or court rule.
(ii) Reimbursement of the expense of an appearance fee for a court reporter who reports a proceeding other than one described in subparagraph (i) of this paragraph, or who reports a proceeding which is not reported by an official court reporter acting in his or her official capacity for the court, is limited to twenty-five dollars. Where a transcript of such proceeding is produced, there shall be no reimbursement for the expense of any appearance fee. Where a transcript is requested by the attorney after an appearance fee has been paid, reimbursement of the expense incurred to obtain the transcript is limited to the cost of producing the transcript, within the prescribed limitations of paragraph (A) of this subdivision, less the amount of the paid appearance fee.
(iii) Reimbursement of travel expenses incurred for travel by a court reporter is subject to the limitations provided by subdivision (2) of this subsection.
(iv) Except for the appearance fees provided in this paragraph, there shall be no reimbursement for hourly court reporters' fees or fees for other time expended by the court reporter, either at the proceeding or traveling to or from the proceeding.
(C) Reimbursement of the cost of transcription of tapes electronically recorded during preliminary hearings or magistrate court jury trials is limited to the rates established by the supreme court of appeals for the reimbursement of transcriptions of electronically recorded hearings and trial.
(2) Reimbursement for any travel expense incurred in an eligible proceeding is limited to the rates for the reimbursement of travel expenses established by rules promulgated by the governor pursuant to the provisions of section eleven, article eight, chapter twelve of this code and administered by the secretary of the department of administration pursuant to the provisions of section forty-eight, article three, chapter five-a of this code.
(3) Reimbursement for investigative services is limited to a rate of thirty dollars per hour for work performed by an investigator.
(f) For purposes of compensation under this section, an appeal from a final order of the circuit court, or proceeding seeking an extraordinary remedy, made to the supreme court of appeals, shall be considered a separate case.
(g) Vouchers submitted under this section shall specifically set forth the nature of the service rendered, the stage of proceeding or type of hearing involved, the date and place the service was rendered and the amount of time expended in each instance. All time claimed on the vouchers shall be itemized to the nearest tenth of an hour. If the charge against the eligible client for which services were rendered is one of several charges involving multiple warrants or indictments, the voucher shall indicate such fact and sufficiently identify the several charges so as to enable the court to avoid a duplication of compensation for services rendered. The executive director shall refuse to requisition payment for any voucher which is not in conformity with the recordkeeping, compensation or other provisions of this article and in such circumstance shall return the voucher to the court or to the service provider for further review or correction.
§29-21-15. Public defender corporations -- Board of directors.
(a) The governing body of each public defender corporation shall be a board of directors consisting of persons who are residents of the area to be served by the public defender corporation:
(1) In multi-county circuits, and in the case of multi-circuit or regional corporations, the county commission of each county within the area served shall appoint a director, who shall not be an attorney-at-law. The president of each county bar association within the area served shall appoint a director, who shall be an attorney-at-law: Provided, That in a county where there is not an organized and active bar association, the circuit court shall convene a meeting of the members of the bar of the court resident within the county and such members of the bar shall elect one of their number as a director. The governor shall appoint one director, who shall serve as chairman, who may be an attorney-at-law, unless such appointment would result in there being an even number of directors, in which event the governor shall appoint two directors, one of whom may be an attorney-at-law. The governor's appointees shall serve four-year terms which terms shall coincide with the term of the governor. Appointments may be made for unexpired terms as may be necessary. Other board members' terms shall be as determined by the board; and
(2) In single-county circuits, the manner of selecting directors shall be the same as that described in subdivision (1) of this subsection, except that the county commission shall appoint two directors rather than one, and the bar shall appoint two directors rather than one.
(b) The board of directors shall have at least four meetings a year. Timely and effective prior public notice of all meetings shall be given pursuant to rules promulgated in accordance with the provisions of section three, article nine-a, chapter six of this code, and all meetings shall be public except for those concerned with matters properly discussed in executive session.
(c) The board of directors shall establish and enforce broad policies governing the operation of the public defender corporation but shall not interfere with any attorney's professional responsibilities to clients. The duties of the board of directors shall include, but not be limited to, the following:
(1) Appointment of the public defender and any assistant public defenders as may be necessary to enable the public defender corporation to provide legal representation to eligible clients; and
(2) Approval of the public defender corporation's budget and the fixing of professional and clerical salaries: Provided, That the compensation paid to any part-time public defender, part-time assistant public defender or other part-time employee shall not include benefits such as retirement, health insurance or paid leave time for illness or vacation unless public defender services has certified in writing to the board of directors that there exists sufficient funding to provide such benefits and the board of directors authorizes such benefits to be included in the compensation; and
(3) Removal of any public defender, assistant public defender or other employee for misfeasance, malfeasance or nonfeasance.
(d) To the extent that the provisions of chapter thirty-one of this code regarding nonprofit corporations are not inconsistent with this article, the provisions of said chapter shall be applicable to the board of directors of the public defender corporation.
(e) While serving on the board of directors, no member may receive compensation from the public defender corporation, but a member may receive payment for normal travel and other out-of-pocket expenses required for fulfillment of the obligations of membership and may accept appointments to represent eligible clients so long as he or she does not discuss a particular case with any public defender, assistant public defender or other employee of the office governed by the board. Directors may not serve as cocounsel with the public defender or assistant public defender in any matter.
§29-21-17. Private practice of law by public defenders.
(a) No full-time public defender or full-time assistant public defender may engage in any private practice of law except as provided in this section.
(b) A board of directors may permit a newly employed full-time public defender or full-time assistant public defender to engage in the private practice of law for compensation for the sole purpose of expeditiously closing and withdrawing from existing private cases from a prior private practice. In no event shall any person employed for more than ninety days as a full-time public defender or full-time assistant public defender be engaged in any other private practice of law for compensation: Provided, That until the first day of January, one thousand nine hundred ninety-three, the prohibition against the private practice of law does not apply to full-time public defenders employed in Class II, III or IV counties as defined by article seven, chapter seven of this code.
(c) A board of directors may permit a full-time public defender or full-time assistant public defender to engage in private practice for compensation if the defender is acting pursuant to an appointment made under a court rule or practice of equal applicability to all attorneys in the jurisdiction and if the defender remits to the public defender corporation all compensation received.
(d) A board of directors may permit a full-time public defender or full-time assistant public defender to engage in uncompensated private practice of law if the public defender or assistant public defender is acting:
(1) Pursuant to an appointment made under a court rule or practice of equal applicability to all attorneys in the jurisdiction; or
(2) On behalf of a close friend or family member; or
(3) On behalf of a religious, community or charitable group.
(e) Violation of the requirements of this section is sufficient grounds for immediate summary dismissal regardless of the conditions of employment established by a corporation's board of directors.